Karnataka High Court
Sri S Radha Krishna vs National Law School Of India on 11 August, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:36487
WP No.12371 of 2022
C/w WP No.12699 of 2022
WP No.12894 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 12371 OF 2022 (S-RES) C/W
WRIT PETITION NO. 12699 OF 2022 (S-RES)
WRIT PETITION NO. 12894 OF 2022 (S-RES)
IN WP NO.12371 OF 2022:
BETWEEN:
1. SRI. S. RADHA KRISHNA
S/O. SRI. A. SHASHIDHARAN,
AGED ABOUT 45 YEARS,
NO.101, STAFF QUARTER,
GATE NO.3, N.L.S.I.U,
NAGARBHAVI(POST),
BANGALORE-580072.
2. SRI. NARASIMHA MURTHY
Digitally S/O. LATE SRI. VARDAPPA,
signed by AGED ABOUT 40 YEARS,
VANDANA S NO.204, NEW STAFF QUARTER,
Location: MAIN GATE NO.1, N.L.S.I.U,
High Court NAGARBHAVI (POST),
of BANGALORE-580072.
Karnataka
3. SRI. KRISHNA P. V.
S/O. LATE SRI. VASTE GOWDA,
AGED ABOUT 52 YEARS,
NO.73, 2ND CROSS,
HOYSALANAGAR,
NAGARBHAVI (POST),
BANGALORE-580072.
4. SRI. MARIGOWDA
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WP No.12894 of 2022
S/O. SRI. KYATE GOWDA,
AGED ABOUT 45 YEARS,
NO.70, 2ND MAIN ROAD,
BASAWESWARANAGAR,
KENGERI CHECK POST,
BANGALORE-560060.
5. SRI. KRISHNE GOWDA
S/O. KARIGOWDA,
NO.104, STAFF QUARTER,
GATE NO.3, N.L.S.I.U.,
NAGARBHAVI (POST),
BANGALORE-580072.
6. SMT. ARPITA K., W/O. KUBERAN,
AGED ABOUT 46 YEARS,
NO.102, GATE NO.3,
STAFF QUARTER, N.L.S.I.U, CAMPUS,
NAGARBHAVI,
JNANABHARATHI MAIN ROAD,
BANGALORE-580072.
7. SRI. NAGARAJU Y. J.
S/O. JAVARE GOWDA,
AGED ABOUT 39 YEARS,
ISEC POST, NAGARBHAVI VILLAGE,
NEAR ANGANVADI NAGARBHAVI,
BANGALORE-560072.
8. SRI. SRINIVAS,
S/O. LATE KONAPPA,
AGED ABOUT 49 YEARS,
NO.54, 2ND MAIN ROAD,
MARUTHINAGAR, NAGARBHAVI,
BANGALORE-560072.
9. SMT. JAYALAKSHMI,
W/O. SRINIVAS,
AGED ABOUT 48 YEARS,
NO.100, JANATA COLONY,
NAGARBHAVI POST,
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WP No.12371 of 2022
C/w WP No.12699 of 2022
WP No.12894 of 2022
BANGALORE-560072.
10. SMT. NARAYANAMMA
W/O. L. NAGARAJU,
AGED ABOUT 50 YEARS,
NO.144, 3RD CROSS,
HOYSALANAGAR,
NAGARBHAVI, BANGALORE,
KARNATAKA,
BANGALORE-560072.
11. SMT. RATHNAMMA,
W/O. RAJU,
AGED ABOUT 45 YEARS,
REVANNA LAYOUT,
NAYANDAHALLI,
MYSORE ROAD,
BANGALORE-560039.
12. SMT. KEMAPAMMA
W/O. LATE SIDDALINGE GOWDA,
AGED ABOUT 46 YEARS,
NO.164/1, MALAVALLI,
MALAVALLI, MANDYA,
KARNATAKA-571430.
13. SMT. RAJAMMA
W/O. SHIVALINGE GOWDA,
AGED ABOUT 46 YEARS,
THURANGANURU,
MALAVALLIHALLI, MANDYA,
KARNATAKA 571430.
14. SMT. RUDRAMMA
W/O. SOMANNA,
AGED ABOUT 52 YEARS,
NO.47, ARUNDATI NAGAR,
BANGALORE NORTH,
CHANDRA LAYOUT POST,
BANGALORE-560040.
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WP No.12894 of 2022
15. SMT. SUNANDAMMA
W/O. MAHADEVAPPA,
AGED ABOUT 49 YEARS,
NO.88, 2ND CROSS,
HOYSALA NAGAR,
NAGARBHAVI POST,
BANGALORE-560072.
16. SMT. GEETHA W/O. MURTHY,
AGED ABOUT 39 YEARS,
NO.81/A, 2ND CROSS,
JANATHA COLONY,
NAGARBHAVI, BANGALORE,
KARNATAKA-560072.
17. SMT. SHIVARAJAMMA,
W/O. M. KUMAR,
AGED ABOUT 47 YEARS,
NEAR ANGANVADI,
NAGARBHAVI VILLAGE,
NAGARBHAVI POST,
BANGALORE-560072.
18. SRI. RAJU K.,
S/O. KARIGOWDA,
AGED ABOUT 52 YEARS,
NO.68, CHOWDESHWARI NILAYA,
4TH CROSS, JNANABHARATHI POST,
JNANABHARATHI NAGAR,
BANGALORE SOUTH,
MALLATHAHALLI,
BANGALORE-560056.
19. SRI. KUMAR H. B.
S/O. LATE BILIYAPPA,
AGED ABOUT 36 YEARS,
NO.101, BLOCK NO.2,
GATE NO.3, N.L.S.I.U
NAGARBHAVI POST,
BANGALORE-560072.
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WP No.12894 of 2022
20. SMT. KANTHAMMA
W/O. U.N. SWAMY,
AGED ABOUT 47 YEARS,
NO.2, C BLOCK, CLASS 4 EMPLOYEE
QUARTERS, GANAPATI TEMPLE ROAD,
JGANABHARATHI,
BANGALORE-560056.
...PETITIONERS
(BY SRI. K.N.PHANINDRA, SENIOR COUNSEL FOR SMT. VAISHALI
HEGDE, ADVOCATE)
AND:
1. NATIONAL LAW SCHOOL OF INDIA
UNIVERSITY, AFFILIATED TO
BAR COUNCIL OF INDIA,
REPRESENTED BY ITS REGISTRAR,
POST BOX NO.7201,
NAGARBHAVI,
BENGALURU-5600242,
KARNATAKA.
2. BAR COUNCIL OF INDIA,
REPRESENTED BY ITS CHAIRMAN,
21 ROUSE AVENUE INSTITUTIONAL
AREA ITO, NEAR BAL BHAWAN,
NEW DELHI-110002.
...RESPONDENTS
(BY SRI. P.S.RAJAGOPAL, SENIOR COUNSEL FOR SRI. ADITYA
NARAYAN, ADVOCATE FOR R1)
(R2-DELETED V/O DATED 23.08.22)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 ND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE
COMMUNICATIONS (i) DTD 06.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K.(ii) DTD 06.06.2022
BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K1.(ii) DTD
06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K2.(iiii) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K3.(vi) DTD 07.06.2022 BEARING
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WP No.12894 of 2022
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K4.(v) DTD 06.06.2022
BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K5.(vi) DTD
07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K6.(vii) DTD 07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K7.(viii) DTD 07.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K8.(ix) DTD 06.06.2022
BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K9.(x) DTD
06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K10.(xi) DTD 07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K11.(xii) DTD 06.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K12.(xiii) DTD
06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K13.(xiv) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K14.(xv) DTD 06.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K15.(xvi) DTD
07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K16.(xvii) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K17.(xviii) DTD 06.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K18.(xix) DTD
07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K19 ISSUED R-1, ALL FURTHER PROCEEDINGS THERETO.DIRECT THE
RESPONDENT UNIVERSITY TO GIVE EFFECT TO THE ORDER DTD
28.04.2011 BERING NO.NLSIU-22022/4/2011-ADMN VIDE ANNX-A
AND CONSEQUENTLY CONSIDER AND APPOINT THE PETITIONERS AS
PERMANENT EMPLOYEES OF THE RESPONDENT UNIVERSITY BY
EXTENDING ALL BENEFITS ACCRUING THEREOF.GRANT AN INTERIM
ORDER TO STAY THE OPERATION OF THE COMMUNICATIONS-(i) DTD
06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K.(ii) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K1.(ii) DTD 06.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K2.(iiii) DTD 06.06.2022
BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K3.(vi) DTD
07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K4.(v) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K5.(vi) DTD 07.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K6.(vii) DTD 07.06.2022
BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K7.(viii) DTD
07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K8.(ix) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K9.(x) DTD 06.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K10.(xi) DTD
07.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K11.(xii) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K12.(xiii) DTD 06.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K13.(xiv) DTD
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C/w WP No.12699 of 2022
WP No.12894 of 2022
06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K14.(xv) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K15.(xvi) DTD 07.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K16.(xvii) DTD
06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-
K17.(xviii) DTD 06.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN
VIDE ANNX-K18.(xix) DTD 07.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K19 ISSUED R-1, ALL
FURTHER PROCEEDINGS THERETO AND ETC.,
IN WP NO.12699 OF 2022:
BETWEEN:
1. SMT. BHARATHI
W/O. SRI. N.BABURAO,
AGED ABOUT 50 YEARS,
N.L.S.I.U QUARTERS,
N.L.S.I.U CAMPUS,
BANGALORE-580072.
2. SRI. YOGESH,
S/O. SRI. RAMEGOUDA,
AGED ABOUT 32 YEARS,
NO.03, ISEC ROAD,
NAGARBHAVI ROAD,
BANGALORE-580072.
...PETITIONERS
(BY SRI. K.N.PHANINDRA, SENIOR COUNSEL FOR SMT. VAISHALI
HEGDE, ADVOCATE)
AND:
1. NATIONAL LAW SCHOOL OF INDIA
UNIVERSITY, AFFILIATED TO
BAR COUNCIL OF INDIA,
REPRESENTED BY ITS REGISTRAR,
POST BOX NO.7201,
NAGARBHAVI,
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WP No.12894 of 2022
BENGALURU-5600242,
KARNATAKA.
2. BAR COUNCIL OF INDIA,
REPRESENTED BY ITS CHAIRMAN,
21 ROUSE AVENUE INSTITUTIONAL
AREA ITO, NEAR BAL BHAWAN,
NEW DELHI-110002.
...RESPONDENTS
(BY SRI.P.S.RAJAGOPAL, SENIOR COUNSEL FOR SRI. ADITYA
NARAYAN, ADVOCATE)
(R2-DELETED V/O DATED 23.08.22)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 ND
227 OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH
THE COMMUNICATIONS (1)DATED 20.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-K; DATED
20.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE
ANNX-K1 AND ETC.,
IN WP NO.12894 OF 2022:
BETWEEN:
1. SRI. D.K.KESHAVAMURTHY
S/O. SRI. D.KRISHNAMURTHY,
AGED ABOUT 44 YEARS,
R/O. NO.528, 1ST FLOOR,
4TH CROSS, WEAVERS COLONY,
BANNERGHATTA ROAD,
BANGALORE-580083.
2. SRI. M. RAMAKRISHNA
S/O. LATE SRI. MADAIAH,
AGED ABOUT 45 YEARS,
R/O. NO.40, 2ND MAIN ROAD,
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WP No.12894 of 2022
MADHUNAGAR, NAGARBHAVI CIRCLE,
BANGALORE-580072.
...PETITIONERS
(BY SRI. K.N.PHANINDRA, SENIOR COUNSEL FOR SMT. VAISHALI
HEGDE, ADVOCATES)
AND:
1. NATIONAL LAW SCHOOL OF INDIA
UNIVERSITY, AFFILIATED TO
BAR COUNCIL OF INDIA,
REPRESENTED BY ITS REGISTRAR,
POST BOX NO.7201, NAGARBHAVI,
BENGALURU-5600242, KARNATAKA.
2. BAR COUNCIL OF INDIA,
REPRESENTED BY ITS CHAIRMAN,
21 ROUSE AVENUE INSTITUTIONAL
AREA ITO, NEAR BAL BHAWAN,
NEW DELHI-110002.
...RESPONDENTS
(BY SRI. P.S.RAJAGOPAL, SENIOR COUNSEL FOR SRI. ADITYA
NARAYAN, ADVOCATE;
(R2-DELETED V/O DATED 23.08.22)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 ND
227 OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH
THE COMMUNICATIONS (1)DATED 20.06.2022 BEARING
NO.NLSIU/22022/1/2021 ADMN VIDE ANNX-E; DATED
20.06.2022 BEARING NO.NLSIU/22022/1/2021 ADMN VIDE
ANNX-E1 AND ETC.,
THESE PETITIONS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No.12894 of 2022
ORDER
1. Since the common questions of law and facts arise for consideration in all the three petitions, they are taken up together and disposed of by this common order.
2. The petitioners claim that during the period from 1990-2012, the petitioners in W.P.No.12371/2022 and W.P.No.12894/2022 were appointed in the respondent university in various roles as a part of canteen/mess staff and housekeeping (class-IV/'D' Category) and have been working in the respondent university for over period of 15 to 20 years. Similarly, petitioners in W.P.No.12699/2022 were appointed as data entry operators and attenders respectively in the respondent university and have been working for over a period of 12 to 16 years.
3. It is contended that that on 28.04.2011, the respondent university passed an order deciding and resolving to regularize the services of contract employees working in its office, training center and hostel for long
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 periods of time subject to the terms and conditions mentioned in the said order. Pursuant to the said order dated 18.04.2011, the respondent-university issued appointment letters during the period between 29.04.2011 to 29.10.2013, whereby the respective petitioners were initially appointed for a period of five years.
4. It is contended that clause-III of the said communications specifically states that the petitioners' services may be regularized at the end of the contract period as per the decision of the General Council of the University until they attained the age of superannuation. In pursuance of the said appointment orders/letters, the respondent-University issued orders dated 05.05.2011 onwards by referring to the aforesaid orders dated 28.04.2011 and 29.04.2011 and stipulated the initial pay band, grade pay and date of increments which had been determined in terms of the said orders.
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5. Subsequently on 03.08.2012, the respondent- university declared that the petitioners had successfully completed their probation and thus the petitioners underwent the period of probation. It is further contended that during the period of appointment, petitioners have been extended increments, medical reimbursement, house rend allowance, travelling allowance, gratuity etc., and have been enrolled under the contributory CP and CPF schemes as per the benefit extended to a permanent employee. Thereafter by order dated 27.06.2016, the term of appointment of the petitioners were extended by the respondent by a further period of five years subject to the terms and conditions of the appointment letters/orders referred to supra. The said term of five year was once again extended by up to 30.06.2022 vide order dated 24.03.2022 by reiterating that the same would be subject to the terms and conditions of the said appointment letters/orders.
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6. The petitioners contend that the respondent issued letters/communications dated 06.06.2022 and 07.06.2022 to the petitioners intimating them that the respondent did not intend to continue the services of the petitioners subsequent to 31.06.2022 since they have taken a decision to outsource several services of the university to an external third party agency and mess/canteens to one "Quess-Café". According to the petitioners the impugned communications deserved to be quashed and their services deserved to be regularized by appointing them as permanent employees by extending all benefits accruing from the same and as such, petitioners are before this Court by way of the present petitions.
7. The respondents filed their statements of objections opposing the petitions and denying the various allegations and claim made by the petitioners. It was contended that the claim for regularization of the petitioners who were temporary employees was not maintainable and the petition was liable to be dismissed. It
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 was further contended that the executive council of the respondent university is its highest governing body empowered to take decisions in terms of section 10 and clause-9(2) of the schedule of the National Law School of India Act, 1986 (for short "the said Act of 1986"). The petitioners fall within the category of "lower management services" and the Executive Council of the University has framed "The Employees Service Regulations and Finance Regulations" (for short, "the said Regulations") to govern the manner of appointment of persons as employees with the respondent-university and their employment.
8. The respondent contended that around March- 2018, at the instance of certain employees (not writ petitioners), the Executive Council directed a sub committee to examine their issue regarding regularization pursuant to which a report was submitted on 11.01.2019 stating that regularization could not be granted. On 12.01.2019, the said report was accepted by the Executive Council and pursuant there to, the registrar of the
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 university submitted a office note dated 21.03.2022 delineating an action plan to give effect to the decision of the Executive Council dated 12.01.2019. The said office note was approved by the Executive Council in its 97th meeting dated 28.03.2022 and in terms of the same, the impugned communications were issued to the petitioners.
9. It was further contended that the original appointment of the petitioners was of contractual nature and the said character has remained unchanged till date. The ad hoc contractual appointment of the petitioners was made without any advertisement and were not made against sanctioned posts and without following due process of law or in terms of the regulations and since the respondent-university never called for advertisement or nomination from the exchangers nor constitute a selection committee as contemplated under the regulations for effecting appointments, the petitioners who were contractual employees appointment an ad hoc basis cannot claim absorption, regularization or permanent
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 employment. Accordingly, the respondent placed reliance upon various judgments of the Apex Court and this Court and submitted that there was no merit in the petitions and that the same were liable to be dismissed.
10. I have heard Sri K.N.Phanindra, learned Senior Counsel for the petitioners and Sri P.S.Rajagopal, learned Senior Counsel for the respondent and perused the material on record.
11. In addition to reiterating the various contentions urged in the petitions and referring to the material on record learned Senior Counsel for the petitioners submitted that the impugned communications issued by the respondent-University are illegal and arbitrary and the same deserve to be quashed and appropriate directions are to be issued to the respondent to regularize the services of the petitioners. He elaborated his submissions as under :
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i) The appointment letters/orders issued to the petitioner's declare that the contract of the petitioners may be regularized till the date of their superannuation and without considering the claim of the petitioners for regularization till the said age of superannuation, the respondent could not have issued the impugned communications which are vitiated and deserved to be quashed.
ii) The appointment letters/orders issued to the petitioners also provide benefits of CPF, Gratuity, CPS, traveling allowance, medical reimbursement etc in addition to speaking about seniority within the service branch and also of combined seniority and such benefits and seniority are ordinarily not extended to contractual employees but only to regularized employees and by virtue of the said appointment letters/orders, petitioners had legitimate expectations of regularization of their services and were under the bona fide belief/impression that their services had
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 been regularized when they were issued with the said appointment letters/orders and as such, the impugned communications deserve to be quashed.
iii) The respondent university not only appointed the petitioners and fixed their initial pay and grade pay after taking into account and giving due weightage to their long years of service as can be seen from the order dated 28.04.2011 but the respondent also issued a subsequent declaration dated 03.08.2012 stating that the petitioners had successfully completed the prescribed probationary period of one year which is available only to substantive posts as per the service regulations of the respondent thereby indicating that the petitioners were not only appointed to substantive posts but were also entitled to regularization by quashing the impugned communications.
iv) In addition to the fact that 31 other employees identically/similarly placed as the petitioners have
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 been regularized by the respondent, exclusion of the petitioners and denying them regularization amounts to discrimination, no material is placed by the respondent to establish that the petitioners had not been appointed against the undisputed 28 sanctioned posts and the impugned communications deserve to be quashed on this ground also, especially when the details of the said posts, service records, salary books etc., of all employees have been deliberately withheld by the respondent who is the custodian of the same and against whom adverse inference has to be drawn in the present petitions.
v) The respondent has exploited to the petitioners who have been working for long periods of time and by a single stroke, the petitioners are attempted to be thrown out despite attaining advance age and having spent the best part of their youth in serving the university, denial of an opportunity to put forth their claim for regularization is violative of principles of
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 natural justice and having regularized other similar employees, the respondent is guilty of discrimination warranting interference by this Court in the present petitions.
12. In support of his contentions learned Senior Counsel placed reliance upon the following judgments:
a) The Secretary, State of Karnataka Vs. Umadevi and others- (2006) 4 SCC 1.
b) The State of Karnataka Vs. M.L.Kesari and others (2010) 9 SCC 247.
c) The State of Jharkhand Vs. Kamal Prasad (2014) 7 SCC 233.
d) Sheo Narain Nagar Vs. State of Uttar Pradesh and another (2018) 13 SCC
432.
e) U.P State Electricity Board Vs. Pooran Chandra Pandey and others (2007) 11 SCC 92.
f) Narendra Kumar Tiwari Vs. State of Jharkhand (2018) 8 SCC 238.
g) Union of India Vs. Central Administrative Tribunal-(2019) 4 SCC
290.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
h) Central Inland Water Transport Corporation Limtied Vs. Brojo Nath Gangooli (1986) 3 SCC 156.
i) M.P.Prabhu Vs. State of Karnataka-Civil
Appeal 9337-52/2015 dated
04.11.2015.
j) Smt.G.P.Sarojamma Vs. State of
Karnataka-W.P.No.80646/2011 dated
08.03.2021.
k) Chander Mohana Negi Vs. State of Himachal Pradesh-(2020) 5 SCC 732.
l) Hanumantharayappa Vs. Principal Secretary 2022 (3) Kar.L.J. 483.
m) Nagendra Vs. Karnataka Veterinary
Animal and Fisheries Sciences
University-W.P.34001/2019 dated
16.07.2021.
n) Karnataka Veterinary Animal and
Fisheries Sciences University Vs.
Nagendra-W.A.1185/2021 dated
10.01.2022.
13. Per contra, learned Senior Counsel for the respondent would submit the petition was not maintainable since disputed questions of fact arise for consideration in the instant petitions, which are liable to be dismissed. It was submitted that as per Section 10 and clause-9(2) of the schedule to the said Act of 1986, the
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 Executive Council was empowered to take decision as regards appointment and employment by the respondent- university. In addition to the fact that the services of the petitioners had never been regularized, the contractual nature of their appointment never changed and their employment was at all times purely temporary, contractual and of ad hoc nature and the petitioners were not entitled to claim permanent post i.e., absorption since they were not appointed to any vacant sanctioned posts and subsequent alleged regularization was of no consequence since prolonged continuous ad hoc service does not entail regular service so as to claim permanent or substantive status.
14. It was submitted that the petitioners had made vague and unsubstantiated averments which had not been proved by them and since their appointment was not in terms of service regulations including that of advertising and/or receiving nominations from employment exchanges or other sources and obtaining recommendation of a
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 selection committee, petitioners would not be entitled to claim permanence as "regularization" does not mean that appointment would have to be considered as permanent. It further submitted that appointments made contrary to statutory provisions being void ab initio, no claim of permanency can be made and no directions can be issued to the respondent to act contrary to the statute and its regulations. Learned Senior Counsel for the respondent submitted that since the alleged expectation of the petitioners was not founded in law and being contrary to law, the same was not legitimate and their tenure having ended with the period of contract, they can have no legitimate expectation of permanency since no assurance was given by the respondent of a permanent position to the petitioners whose appointment was purely temporary.
15. It was submitted that in addition to the fact that the petitioners were not entitled to protection under the Industrial Disputes Act, 1947, they were also not entitled to any relief in equity since they refused jobs
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 offered by their respective vendors as well as the monitory compensation of Rs.3,00,000/- offered by the respondent to them as VSS compensation apart from retrenchment compensation to which they were entitled to in law. It was also submitted that the conduct of the petitioners disentitled them from any relief in the present petitions. Learned Senior Counsel submitted that the decisions relied upon by the petitioners were not applicable to the facts of the instant case and placed reliance upon the following judgments in support of his contentions:
a) Secretary and Curator, Victoria Memoraial Hall Vs. Howrah Ganatantrik Nagrik Samity-(2010) 3 SCC 732.
b) Birwati Chaudhary Vs. State of Haryana- (2018) 9 SCC 458.
c) State of Odisha Vs. Sulekh Chandra Pradhan-AIR 2022 SC 2030.
d) A.P.Christian Medical Education Society Vs. Government of Andhra Prades-(1986) 2 SCC 667.
e) The Secretary, State of Karnataka Vs. Umadevi and others- (2006) 4 SCC 1.
f) Ashwini Kumar Vs. State of Bihar-(1997) 2 SCC 1.
g) M.S.Patil Vs. Gulbarga University-(2010) 10 SCC 63.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
h) Renu and others Vs. District and Sessions Judge-(2014) 15 SCC 731.
i) Hindustan Petroleum Corporation Limtied Vs. Ashok Ranghba Ambre-(2008)2 SCC
717.
j) State of Orissa Vs. Dr. Pyari Mohan0(1995) 3 SCC 123.
k) Dwarikesh Sugar Industries Vs. Prem Heavy Engineering Works-(1997) 6 SCC
450.
l) Milind Chaudhary Vs. Karnataka State Law University-ILR 2014 KAR 5920.
m) State of Karnataka Vs. K.G.S.D Canteen Employees Welfare Association-(2006) 1 SCC 657.
n) Official Liquidator Vs. Dayanand-(2008) 10 SCC 1.
o) K.R.Manjunath Vs. State of Karnataka-ILR 2012 KAR 5768.
p) State of Panjab Vs. Jagjit Singh (2017) 1 SCC 148.
q) State of Orissa Vs. Mamata Mohanty- (2011) 3 SCC 436.
r) Satishchandra Anand Vs. Union of India- AIR 1953 SC 250.
s) Bank of India Vs. O.P.Swarnakar-(2003) 2 SCC 721.
t) Oil and Natural Gas Corporation Vs. Krishan Gopal and others-2020 SCC Online SC 150.
16. I have given my anxious consideration to the rival submissions and perused the material on record.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
17. The material on record discloses that the petitioners have been working as contractual employees in the respondent university in various roles viz., canteen, mess staff, housekeeping, data entry operator, attendant etc., over a period from 12 to 29 years. On 28.04.2011, the respondent passed an order resolving and deciding to regularize the services of contractual employees including the petitioners. The said order dated 28.04.2011 reads as under:
"The question of regularising the services of the contractual employees in the context of considerable expansion in the activities of the University and increase in the demand for regular manpower in the office, Training Centre and Hostel Segments has been under consideration of this University for quite some time. After careful consideration, the Competent Authority as decided to regularise the service of the contract employees in all the three segments subject to the conditions given below:
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 (1) Those who have been on regular contract employment on fixed monthly salary shall be considered.
(ii) Those who have completed not less than two years of service as on 1.3.2011 will be considered.
(iii) Except those who have been recruited as Cook in the skilled category, all other employees shall be assigned a uniform designation of Helper, with sub-categorisations as mentioned below. Those who have been recruited as Assistant Cook or in any other designation shall also be assigned the designation as 'Helper'.
(a) Helper (Hostel Services): For those who are paid from the Hostel Fees including GWC.
(b) Helper (Training Centre Services): For those who are paid from the Training Centre.
(c) Helper (Office and General Services); For those who are attached to other University offices including Library and paid from General Funds.
(iv) They are liable to serve anywhere in India in the interest of services of the University.
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(v) Those who have been recruited for the post of Cook shall be placed in PB-1 in the pay band of Rs. 5200-20200 with a grade pay of Rs. 1900/- P.M. All others in the designation of Helper shall be placed in the pay band Rs. 4440-7440 with a grade pay of Rs. Rs. 1400/- PM.
2. As a compensation for long years of contractual service, the following system of assigning weightage in the matter of initial pay shall be introduced.
(a) Up to 2 years of service as on 1.3. 2011:
No weightage.
(b) Above 2 years and up to 3 Years of service as on 1.3. 2011- 3% of the pay in the pay band plus grade pay rounded off to the nearest Rs.10/-
(c) Above 3 years and up to 6 years of service as on 1.3. 2011: 6% of the initial basic pay plus grade pay rounded off to the nearest Rs.
10.
(d) Above 6 years of service as on 1.3. 2011:
9% of the basic pay rounded off to the nearest Rs. 10/-
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 (While rounding off, the fraction of rupees shall be ignored)
3. Their services will be temporary and terminable with one month's notice on either side. The University will reserves the right to terminate their services at any time without assigning any reason subject to the condition that if the notice falls short of one month, Cash equivalent of the period falling so short, shall be paid to the employee.
4. All the employees will be placed on probation for a period One year. Their seniority within the serving branch as well as combined seniority with reference total strength of Helpers in all branches put together shall be determined on the basis of their date of joining as contractual employee in the University. This will be only for seniority only. For all other purposes, regular service shall commence only from the date on which they join for duty in terms of these orders.
5. Except for the weightage for long years of service mentioned in para 2 above the employees shall not be eligible to claim any benefit on the basis of the contractual service
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 rendered by them prior to the date of implementation of the these orders. 6 The employees are liable to be redeployed within or outside their serving branches in the interest of University service."
18. In pursuance of the aforesaid order, identical appointment letters/orders during the period 29.04.2011 to 29.10.2013 were issued in favour of the petitioners appointing them in the lower management service. One such appointment order dated 29.04.2011 in relation to petitioner No.1 in W.P.No.12371/2022 is produced as Annexure-B and the same reads as under:
"The Competent Authority in the National Law School of India University is pleased to offer you an appointment as "Cook" in the Lower Management Service subject to the following terms and conditions
1. The appointment is purely temporary and is on contractual terms for a period of 5 years from the date of joining. His/her services are terminable with one month's
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 notice on either side. The University will reserves the right to terminate their services at any time without assigning any reason subject to the condition that if the notice falls short of one month, cash equivalent of the period falling so short, shall be paid to the employee.
2. The first year of appointment shall be a period of probation which will be regulated in accordance with Service regulations of the University.
3. The contract at the end of the five-
year period may be regularised till the age of superannuation as per the decision of the General Council of the University. The age of superannuation in the University for administrative staff is 60 years at present which may be re-fixed by the University if found necessary.
4. The post of which you are being appointed carries the pay scale of Rs. 5200-20200 plus Grade pay of Rs. 1900 and your basic pay in the scale is fixed at Rs. 5200/- plus Grade Pay of Rs. 1900. In addition, you will be entitled for the Dearness
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 Allowance, House Rent Allowance and Travelling Allowance at the rates applicable to Central Government employees. The rate, period and the mode of these allowances are subject to the University Rules which can be modified by the University if circumstances so demand. If you are allotted University housing, you will be not be eligible for HRA and you will be required also to pay the prescribed licence fee.
5. You will be placed in existing place of duty without any change in the duties and responsibilities until further orders.
6. Leave Rules:
As one belonging to the non-vacation department you will be governed by the Leave Regulations as approved by the Executive Council from time to time.
7. Contributory Provident Fund:
The University has a Contributory Provident Fund to which you are eligible to subscribe besides the contributions from the University. The present rate of subscription by the employee is not less than 12% of the Basic + DA and the University contribution is 12% of Basic plus DA.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
8. Gratuity:
Employees who have completed five years of qualifying service at the University shall be granted gratuity on his/her retirement from the service of the University after the age of superannuation or on resignation as per the rules in force.
9. Contributory Pension Scheme:
There is a Contributory Pension Scheme operating in the University being managed by LIC of India to which you are eligible to subscribe in addition to the contribution at 15% of Basic plus Dearness Allowance from the University. Your entitlement for the University contribution and pension thereof starts on completion of ten years of continuous service subject to the rules and regulations approved by the Executive Council from time to time.
10. Travelling Allowance:
You will be eligible for Travelling Allowances as per Regulations approved by the Executive Council in this regard.
11. Medical Reimbursement:
The present scale of entitlement towards medical reimbursement is upto a maximum amount of Rs. 15,000/- or two
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 months basic pay whichever is less per financial year. In addition, you will be entitled for a Group Medical Insurance taken by the University from New India Assurance Company within the limits fixed by the University.
12. You will be governed by the provisions of the Act, Regulations as prescribed by the University from time to time in regard to all other service conditions.
13. The University has forbidden smoking in the campus and enforces a discipline conducive to a residential and professional institution aspiring for higher standards of excellence in all spheres of academic life.
Any violation in the prescribed norms will attract disciplinary action.
14. Weightage for past service in the contract employment for the purpose of initial pay may be given at the discretion of the competent authority may be given as per approved formula if any.
15. For the purpose of regulating your service matters, the regulations of the University shall apply. In case no such regulation or
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 regulations exist, the Central Government Rules on the concerned subject shall apply.
16. You are liable to serve anywhere in India in the interest of University services.
17. Your seniority within the service branch as well as combined seniority with reference total strength of Cook in all branches put together shall be determined on the basis of their date joining as contractual employee in the University. This will be only for seniority only. For all other purposes, regular service shall commence only from the date on which their services have been regularised in terms of these orders. You shall not be eligible to claim any benefit on the basis of the service rendered by you as a contractual employee.
18. In case this appointment subject to the above terms and conditions are acceptable to you, you are requested to join duty immediately and in any cases, not later than 7 days from the date of issue of these orders. You are requested to return the enclosed documents duly filled up,
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 along with the joining report to the Office of the Registrar (NLSIU)
(a) Personal data and declarations in the enclosed proforma
(b) Service agreement"
19. There is no gainsaying the fact that the respondent university was established under the said Act of 1986. Section 2(6) of the said Act of 1986 defines Executive Council and Section 10 describes the nature, functions and powers of the Executive Council of the respondent vested with administration, management and control of the respondent. Section 2(7) defines General Council and Section 9 describes the General Council as the Chief Advisory Body of the respondent.
20. The composition, membership, term of office, powers, meetings etc., of the General Council of the respondent-University are enumerated in clauses 2 to 6 of the schedule to the said Act of 1986 as under:
2. Membership of General Council.-
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 (1) There shall be a General Council of the School, which shall consist of the following members, namely.-
(a) the Chairman of the Bar Council of India;
(b) the Vice Chancellor
(c) two nominees of the Bar Council of India Trust from among its trustees of whom one shall be the managing Trustee;
(d) six nominees of the Bar Council of India from amongst its members;
(e) two persons nominated by the Bar Council of India in consultation with the Chancellor
(f) two representatives of allied disciplines in social sciences and humanities nominated by the Bar Council of India Trust;
(g) two Judges from among the Judges of the Supreme Court and High Courts, nominated by the Bar Council of India in consultation with the Chancellor;
(h) five persons nominated by the Bar Council of India Trust from among persons connected with administration of law and education, in consultation with the Chancellor;
(i) the Chief Justice of the Karnataka High Court;
(j) five members nominated by the Government of Karnataka of whom one shall be the Law Minister of Government of Karnataka, one shall be the Advocate General for Karnataka, one shall be the Education Minister of Government of Karnataka, one shall be the Secretary to Government of Karnataka,
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 Education Department and the other shall be an eminent person in the field of law;
(k) all the Heads of the Departments of the School, if any;
(l) five members nominated by the Society of which one shall be the Chairman, Karnataka State Bar Council, one shall be the Secretary to Government of Karnataka, Law Department; and others from amongst its members;
(m) such other members of the Executive Council as are not member of the General Council:
Provided that an employee of the School shall not be eligible for nomination under items (e) and (f):
Provided further that the General Council constituted under the rules of the Society shall be the first General Council.
3. Chairman, Secretary and Treasurer.-
(1) The Chairman of the Bar Council of India shall be the Chairman of the General Council. (2) The Vice Chancellor of the School shall be the Secretary of the General Council.
(3) The Managing Trustee of the Bar Council of India Trust shall be the Treasurer of the School.
4. Term of office of members of the General Council.-
(1) The term of office of the members of the General Council shall, subject to sub-clauses (2) and (3), be three years:
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 Provided that the term of the first General Council will expire on constitution of the regular General Council under the provisions of this Schedule.
(2) Where a member of the General Council becomes such member by reason of the office or appointment he holds or is a nominated member, his membership shall terminate when he ceases to hold such office or appointment or as the case may be, his nomination is withdrawn or cancelled.
(3) A member of the General Council shall cease to be a member, if he resigns or becomes of unsound mind, or become insolvent or is convicted of a criminal offence involving moral turpitude or if a member other than the Vice Chancellor, accepts a full time appointment in the School or if he fails to attend three consecutive meetings of the General Council without the leave of the Chairman.
4) A member of the General Council may resign his office by a letter addressed to the Chairman and such resignation shall take effect as soon as such resignation has been accepted by him.
(5) Any vacancy in the General Council shall be filled either by appointment or nomination, as the case may be, of a person by the respective authority, entitled to make the same and the person so appointed or nominated shall hold office so long only as the member in whose place he is appointed or nominated could have held office if the vacancy had not occurred.
5. Powers of the General Council- The General Council shall have the following powers namely:-
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 (1) to review from time to time the broad policies and programme of the school and suggest measures for the improvement and development of the school.
(2) to consider and pass the resolution on the annual report, financial estimates and the audit reports on such accounts . .
(3) to perform such other functions as it may deem necessary for the efficient functioning and administration of the school.
6. Meetings of the General Council.- (1) The General Council shall meet at least once in a year. An annual meeting of the General Council shall be held on a date to be fixed by the Executive Council, unless some other date has been fixed by the General Council in respect of any year.
(2) The Chairman shall preside over the meetings.
In the absence of the Chairman, the Managing Trustee of the Bar Council of India Trust and in the absence of both of them the Vice Chancellor shall preside:
Provided that the Chancellor may attend the meetings of the General Council and if he so attends a meeting, he shall preside over such meeting.
(3) A report of the working of the School during the previous year, together with a statement of receipts and expenditure, the balance sheet as audited, and the financial estimate shall be presented by the Vice Chancellor to the General Council at its annual meeting.
(4) Meetings of the General Council shall be called by the Chairman, or in his absence by the
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 Vice Chancellor either on his own or at the request of not less than ten members of the General Council.
(5) For every meeting of the General Council 15 days notice shall be given.
(6) One-third of the members of the General Council shall form the quorum.
(7) Each member shall have one vote and if there be equality of votes on any question to be determined by the General Council, the Chairman or the person presiding over the meeting shall, in addition, have a casting vote.
(8) In case of difference of opinion among the members, the opinion of the majority shall prevail.
(9) If urgent action by the General Council becomes necessary, the Chairman may permit the business to be transacted by circulation of papers to the members of the General Council. The action proposed to be taken shall not be taken unless agreed to by a majority of the members of the General Council. The action so taken shall be forthwith intimated to all the members of the General Council and the papers shall be placed before the next meeting of the General Council for confirmation.
21. So also, the composition, membership, term of office, powers, meetings etc., of the Executive Council of the respondent-University are enumerated in clauses 7 to 12 of the schedule to the said Act of 1986 as under
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
7. Membership of the Executive Council-
(1) The Executive Council shall consist of the following, namely.-
(a) the Vice Chancellor
(b) the Chairman;
(c) two persons nominated by the Bar Council of India Trust from among the distinguished men of letters, educationists of repute, members of the learned professions or eminent public men, in consultation with the Chancellor;
(d) a nominee of the Society;
(e) the Law Secretary to the Government of Karnataka;
(f) two members nominated by the Government of Karnataka from among the members of the General Council;
(g) three members nominated by the Bar Council of India from among its members;
(h) two members nominated by the Bar Council of India Trust from among its trustees of whom one shall be the managing Trustee;
(i) three Professors, elected by the teaching staff of the School, by rotation according to seniority:
Provided that an employee of the School shall not be eligible for nomination under category
(c).
(2) The Vice Chancellor shall be the Chairman of the Executive Council.
8. Term of Office of Executive Council.-
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 (1) Where a person has become a member of the Executive Council by reason of the office or appointment he holds, his membership shall terminate when he ceases to hold that office or appointment.
(2) A member of the Executive Council shall cease to be a member if he resigns or becomes of unsound mind or becomes insolvent or is convicted of a criminal offence involving moral turpitude or if a member other than the Vice Chancellor or a member of a faculty accepts a full time appointment in the School or if he fails to attend three consecutive meetings of the Executive Council without the leave of the Chairman of the Executive Council. (3) Unless their membership of the Executive Council is previously terminated as provided in the above sub-clauses members of the Executive Council shall relinquish their membership on the expiry of three years from the date on which they become members of the Executive Council but shall be eligible for re nomination or re-appointment, as the case may be:
Provided that the term of the first Executive Council shall be five years.
(4) A member of the Executive Council other than an ex-officio member may resign his office by a letter addressed to the Chairman of the Executive Council and such resignation shall take effect as soon as it has been accepted by the Chairman of the Executive Council.
(5) Any vacancy in the Executive Council shall be filled either by appointment or nomination, as the case may be, by the respective authority entitled to make the same and on the expiry of
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 the period of the vacancy such appointment or nomination shall cease to be effective.
9. Powers and functions of the Executive Council.-
Without prejudice to clause 5, the Executive Council shall have the following powers and functions, namely:-
(1) to appoint, from time to time, the Vice Chancellor the Registrar, the Librarian, Professors, Associate Professors, Assistant Professors and other members of the teaching staff, as may be necessary, on the recommendations of the selection committee constituted by regulations for the purpose:
Provided that no action shall be taken by the Executive Council, except in cases covered by the second proviso, in regard to the number, qualifications and emoluments of teachers, otherwise than after consideration of the recommendations of the Academic Council:
Provided further that it shall not be necessary to constitute any selection committee for making appointments,-
(a) to any supernumerary post; or
(b) to the post of professor of a person of high academic distinction, eminence and professional attainment invited by the Executive Council to accept the post;
(2) to create administrative, ministerial and other necessary posts to determine the number and emoluments of such posts, to specify minimum qualification for appointment to such posts and to appoint persons to such posts on such terms and conditions of service as may be prescribed by the regulations made in this behalf, or to
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 delegate the powers of appointments to such authority or authorities or officer or officers as the Executive Council may from time to time, by resolution, either generally or specifically, direct (3) to grant in accordance with the regulations leave of absence other than casual leave to any officer of the School and to make necessary arrangements for the discharge of the functions of such officer during his absence; (4) to manage and regulate the finances, accounts, investments, property, business and all other administrative affairs of the School and for that purpose to appoint such agents, as it may think fit;
(5) to invest any money belonging to the School, including any unapplied income, in such stock, funds, shares or securities, as it may from time to time, think fit or in the purchase of immovable property in India, with the like power of varying such investments from time to time;
(6) to transfer or accept transfers of any movable or immovable property on behalf of the School; (7) to enter into, vary, carry out and cancel contracts on behalf of the School and for that purpose to appoint such officers as it may think fit;
(8) to provide the buildings, premises, furniture and apparatus and other means needed for carrying on the work of the School;
(9) to entertain, adjudicate upon, and if it thinks fit, to redress any grievances of the officers of the School, the teachers, the students and the
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 School employees, who may for any reason, feel aggrieved, otherwise than by an act of a court;
(10) to appoint examiners and moderators, and if necessary to remove them and to fix their fees, emoluments and travelling and other allowances, after consulting the Academic Council;
(11) to select a common seal for the School and to provide for the custody of the seal; and (12) to exercise such other powers and to perform such other duties as may be conferred or imposed on it by or under this Act.·
10. Meeting of the Executive Council.- (1) The Executive Council shall meet at least once in three months and not less than fifteen days notice shall be given of such meeting (2) Six members of the Executive Council, shall constitute a quorum at any meeting thereof. (3) In case of difference of opinion among the members, the opinion of the majority shall prevail.
(4) Each member of the Executive Council shall have one vote and if there shall be equality of votes on any question to be determined by the Executive Council, the Chairman of the Executive Council, or as the case may be, the member presiding over that meeting shall, in addition, have a casting vote.
(5) Every meeting of the Executive Council shall be presided over by the Vice Chancellor and in his absence by a member chosen by the members present to preside on the occasion.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 (6) If urgent action by the Executive Council becomes necessary, the Vice Chancellor may permit the business to be transacted by circulation of papers to the members of the Executive Council. The action proposed to be taken shall not be taken unless agreed to by a majority of members of the Executive Council. The action so taken shall be forthwith intimated to all the members of the Executive Council. The papers shall be placed before the next meeting of the Executive Council for confirmation.
11. Constitution of standing committee and appointment of ad-hoc committees by the Executive Council.-
(1) Subject to the provisions of this Act and the regulations made in this behalf, the Executive Council may, by resolution, constitute such standing committees or appoint ad-hoc committees for such purposes and with such powers as the Executive Council may think fit for exercising any power or discharging any function of the School or for enquiring into, reporting or advising upon any matter relating to the School.
(2) The Executive Council may co-opt such persons to a standing committee or an ad-hoc committee as it considers suitable and may permit them to attend the meetings of the Executive Council.
12. Delegation of powers by Executive Council.-
The Executive Council may, by resolution, delegate to the Vice Chancellor or to a committee, such of its powers as it may deem fit subject to the condition that the action taken by the Vice Chancellor or such committee in the exercise of
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 the powers so delegated shall be reported at the next meeting of the Executive Council.
22. In its statement of objections in W.P.No.12894/2022, the respondent has produced as Annexure-R1 its Employees Service Regulations said to have been framed under Section 13 of the said Act of 1986. A perusal of the said regulations, in particular regulation Nos.6 and 8 will indicate that the appointment can be made either on contract basis renewable any number of times or can be made on a permanent basis. In this context, the undisputed material on record discloses that on 28.04.2011, the respondent passed an order to regularize the services of the petitioners pursuant to which appointment orders/letters dated 29.04.2011 onwards were issued to the petitioners.
23. It would be profitable to once again refer to Clause No.3 of the said appointment letter/order which reads as under:
"3. The contract at the end of the five-year period may be regularised till the age of
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 superannuation as per the decision of the General Council of the University. The age of superannuation in the University for administrative staff is 60 years at present which may be re-fixed by the University if found necessary."
24. A perusal of the aforesaid Clause No.3 will indicate that the respondent has unequivocally and unambiguously stated that the appointment was for contractual period of five years and at the end of the said contractual period, the services of the petitioners may be regularized till the age of superannuation as per the decision of the General Council of the University and the said age of superannuation for administrative staff was 60 years on that date which may be re-fixed by the university, if found necessary. In addition thereto, Clause No.2 stipulated that the first year of appointment shall be the probationary period which will be regulated in accordance with the service regulations of the respondent university.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
25. It is an undisputed fact that pursuant to the aforesaid appointment letters/orders, the pay band, grade pay and date of next increment was fixed by the respondent vide order dated 05.05.2011. It is also not in dispute that upon the petitioners' completing the probationary period of one year, their probation has been declared as having been satisfactorily completed by the respondent-university vide order dated 03.08.2012. Further, perusal of the order dated 27.06.2016 will also indicate that term of appointment of the petitioners was extended/renewed for further period of five years with effect from the dates shown against each of them subject to the terms and conditions provided in the earlier appointment letters/orders which shall continue and remain in force and un-changed till they are modified by the respondent.
26. In this regard, it is significant to note that the respondent has not contended that subsequent to the
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 aforesaid order dated 27.06.2016, the terms and conditions of the original appointment letters/orders dated 29.04.2011 onwards had been changed in any manner; in other words, the terms and conditions of the said appointment letters/orders including clause No.3 continued to remain in force, subsist and operate between the parties even after renewal of the contractual period from 27.06.2016 onwards for a period of five years.
27. Similarly, the same terms and conditions also continued up to 30.06.2022 as is clear from the order dated 24.03.2022 which stipulates that earlier orders of appointment of petitioners and other staff members was renewed and extended up to 30.06.2022 without any change/modification to the terms and conditions of their appointment orders/letters dated 29.04.2011 onwards. It is therefore clear that clause No.3 of the appointment orders/letters issued in favour of the petitioners from 29.04.2011 onwards continued to subsist, remain in force and was operative between the petitioners and respondent
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 up to 30.06.2022 and the said terms and conditions of the appointment orders/letters were binding upon both parties including the respondent.
28. A perusal of the impugned endorsements dated 06.06.2022 issued by the respondent to the petitioners will indicate that it is specifically stated that the period of contract would conclude on 30.06.2022. In the said letter itself, the respondent-university has confirmed that the petitioners had been appointed on contractual basis for a five year period from 29.04.2011 onwards and the said contract had been renewed from time to time subject to the same terms and conditions and was due to expire on 30.06.2022. It is therefore clear that the respondent- university has categorically admitted that the petitioners were appointed vide appointment letters/orders issued from 29.04.2011 onwards in favour of the respective petitioners and the terms and conditions of the contract including clause No.3 was subsisting and remained in force and operated between the parties up to 30.06.2022.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
29. As stated supra, a perusal of clause No.3 of the appointment orders/letters dated 29.04.2011 will indicate that after the expiry of the contract period, the petitioners were entitled to seek and obtain regularization of their services up to the age of superannuation (60 years as on that day), as per the decision of the General Council of the respondent-university. In this context it is relevant to state that the provisions of the said Act of 1986 and its schedule will clearly indicate that the General Council and the Executive Council are completely two different, distinct, separate, independent and mutually exclusive bodies/authorities/entities independent of one another and with different compositions, powers, functions and duties as is clear from clause No.2 of the schedule which enumerates the details of the members of the General Council and clause No.7 which enumerates the details of the members of the Executive Council.
30. A perusal of the order dated 28.04.2011 resolving and deciding to regularize the services of the
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 petitioners discloses that there is no reference to either the General Council or Executive Council in the said order. However, in the appointment orders/letters dated 29.04.2011 onwards, the respondent university has made/drawn a clear distinction between the decisions/approvals to be made and granted by the General Council and Executive Council; clause No.3 empowers the General Council to take a decision regarding regularization of services of the petitioners up to the age of superannuation (60 years), while clauses 6, 9 and 10 stipulates approvals to be granted by the Executive Council.
31. In other words, the respondent has consciously, unequivocally and unambiguously declared that while some decisions will be taken by the Executive Council, the decision to regularize the services of the petitioners up to the age of superannuation would lie exclusively with the General Council and would be within its domain and the said decision cannot be taken by the Executive Council as
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 is clear from the undisputed contents of the appointment letters/orders, in particular clause No.3 relating to regularization of the services of the petitioners.
32. Under these circumstances, I am of the considered opinion that before taking a decision not to renew the contract of the petitioners and to terminate them from service, it was incumbent upon the General Council to provide an opportunity to the petitioners to seek regularization up to the age of superannuation and to hear them and thereafter proceed further to take a decision regarding regularization and failure on the part of the respondent to do so, clearly vitiates the impugned communications, which are violative of principles of natural justice and deserves to be quashed. Consequently, since the General Council of the respondent-University has neither notified the petitioners nor provided them any opportunity to put forth their claim for regularization up to the age of superannuation nor the General Council has taken any decision in this regard, it would be just and
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 appropriate to set aside the impugned communications, treat the present petitions as representations and to remit the matter back to the respondent-university with a direction to its General Council to consider the claim of the petitioners for regularization up to the age of superannuation in accordance with law.
33. A perusal of the material on record and the rival submission made by both sides will indicate that there are several contentious issues including complicated/complex questions of law and fact that arise for consideration between the parties regarding regularization etc; so also, both sides have relied upon several documents and judgments of the Hon'ble Apex Court and this Court in support of their respective claims; however, in view of the finding recorded by me above that having regard to clause No.3 of the appointment letters/orders, it was incumbent and absolutely essential for the General Council of the respondent-university to take a decision regarding regularization of the petitioners up to the age of
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022 superannuation by notifying them, providing them an opportunity and hearing them and since the undisputed non-compliance of clause No.3 referred to supra would vitiate the impugned communications which deserve to be set aside and the matter remitted back to the respondent- university with a direction to its General Council to comply with clause No.3 as stated supra, at this stage of the proceedings I do not wish to express any opinion on the merits/demerits of rival contentions and the same are left/kept open to be urged and adjudicated upon at an appropriate stage. Accordingly, the various judgments relied upon by both sides are also not referred to in detail for the purpose of the present order.
34. In the result, I pass the following:
ORDER
i) All the petitions in W.P.No.12371/2022, W.P.No.12894/2022 and W.P.No.12699/2022 are hereby partly allowed.
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NC: 2023:KHC:36487 WP No.12371 of 2022 C/w WP No.12699 of 2022 WP No.12894 of 2022
ii) The impugned communications issued by the respondent-university to the respective petitioners are hereby quashed.
iii) The matter is remitted back to the respondent-university with a direction to its General Council to consider/reconsider the claim of the petitioners afresh for regularization of their services up to the age of superannuation by treating the present petitions as representations submitted by the respective petitioners.
iv) The respondent and its General Council are directed to notify the petitioners, provide them an opportunity to submit additional representations, documents etc., and hear them and proceed further to take appropriate decision/pass appropriate orders regarding regularization of the services of the petitioners up to the age of superannuation in accordance with law.
Sd/-
JUDGE EM, List No.: 19 Sl No.: 12