Karnataka High Court
Ashok N.Yaligar vs The Karnataka Rural Infrastructure on 25 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:11270
WP No. 105932 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 105932 OF 2014 (S-RES)
BETWEEN:
ASHOK S.YALIGAR
C/O S.M. YALIGAR,
AGE: 48 YEARS,
OCC: TASK COMMANDER ( GRADE-I),
KARNATAKA RURAL INFRASTRUCTURE,
DEVELOPMENT LIMITED (KRIDL),
BAGALKOT, DIST: BAGALKOT.
... PETITIONER
(BY SRI. A.S. PATIL, ADVOCATE)
AND:
1. THE KARNATAKA RURAL INFRASTRUCTURE
DEVELOPMENT LIMITED (KRIDL),
(FORMERLY KARNATAKA LAND ARMY
CORPORATION LIMITED)
"GRAMEENABHIRUDDHI BHAVAN",
VIJAYALAKSHMI
M KANKUPPI 4TH & 5TH FLOOR, ANANDRAO CIRCLE,
BANGALORE, R/BY ITS MANAGING DIRECTOR.
Digitally signed by 2. THE DEPUTY DIRECTOR,
VIJAYALAKSHMI
M KANKUPPI KARNATAKA RURAL INFRASTRUCTURE
Date: 2023.10.10 DEVELOPMENT LIMITED, NAVANAGAR,
11:32:43 +0530 BAGALKOT.
3. THE ASSISTANT DIRECTOR,
KARNATAKA RURAL INFRASTRUCTURE
DEVELOPMENT, SUB-DIVISION NO. 1,
BAGALKOT.
... RESPONDENTS
(BY SRI. RAJASHEKAR BURJI, ADVOCATE FOR R1-R3)
THIS WRIT PETITION IS FILED UNDER ARTICELS 226 AND 227
OF THE CONSTITION OF INDIA, PRAYING TO ISSUE WRIT OF
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NC: 2023:KHC-D:11270
WP No. 105932 of 2014
CERTIORARI OR ANY OTHER ORDER QUASHING THE IMPUGNED
COMMUNICATION ISSUED BY RESPONDENT NO.1 DATED 15.03.2012
AS PER ANNEXURE-X TO THE EXTENT OF CHANGING THE NATURE OF
THE APPOINTMENT OF THE PETITIONER AND DIRECTING THE
RESPONDENT NO.2 TO OBTAIN THE SERVICES OF THE PETITIONER
THROUGH OUTSOURCE AGENCY AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner seeks quashment of a communication dated 15.3.2012 and 24.02.2014 by which the claim of the petitioner for regularization has been rejected and his services are placed to an outsource agency, as a consequence, he would seek a writ in the nature of mandamus to direct regularization of services with effect from 29.06.2009 in the post of Assistant Engineer (Task Force Commander).
2. Heard the learned counsel Sri. A.S. Patil appearing for the petitioner and the learned counsel Sri.Rajasjelar Burji appearing for the respondents.
3. Facts in brief germane are as follows.:
The petitioner is appointed by the Karnataka Rural Infrastructure Development Limited ('the Corporation', for -3- NC: 2023:KHC-D:11270 WP No. 105932 of 2014 short) as a Consultant Engineer on a Honorarium with consolidated pay of Rs.5,000/- per month on 30.06.1999.
The petitioner continued to work as a Consultant Engineer on the aforesaid consolidated pay without any break up to the date on which the order of termination comes to be passed against him on 31.12.2000. This is called in question by the petitioner by invoking the jurisdiction of the Labour Court under Section 10(4)(A) of the Industrial Disputes Act. The Labour Court in terms of its order dated 17.12.2008 in KID No.52/2001 sets aside the order of termination dated 31.12.2000, directs reinstatement of the petitioner with continuity of services and takes away all consequential benefits.
After the award of the Labour Court, the petitioner was reinstated into services on the same terms and conditions, which was restoration of status-quo ante of the petitioner. The petitioner, then works for more than one year from 16.09.2009 and then submits a representation. The representation was two fold. He wants hike in salary as was being paid to outsource employees and regularization of his -4- NC: 2023:KHC-D:11270 WP No. 105932 of 2014 services. The respondent-Corporation accepted a part of it by placing the services of the petitioner to an outsource agency and converted the consolidated pay into salary by granting him Rs.15,000/- per month in place of Rs.5,000/- per month. This is accepted by the petitioner and his request for regularization is rejected. It is this order that is called in question by the petitioner in the subject petition.
4. The learned counsel Sri. A.S. Patil appearing for the petitioner would submit that the petitioner has been working continuously without any break except for a short period in the year 2000 and he is entitled to be considered for regularization. It is his further case that the service condition of the petitioner have been altered by placing his service to an outsource agency which takes away the right of the petitioner to claim other benefits in the Corporation which is akin to regular employees of the Corporation.
5. Per contra, the learned counsel Sri.Rajashekar Burji representing the Corporation would vehemently refute the submissions to contend that the petitioner was appointed on honorarium with a consolidated pay of Rs.5,000/- per -5- NC: 2023:KHC-D:11270 WP No. 105932 of 2014 month which was for a limited period after which he was terminated. His termination was set aside and after 8 years of termination the petitioner was reinstated with the same terms and conditions that prevailed earlier on the order of the Labour Court. The petitioner then represented for grant of higher salary as was being granted to others in the same cadre. Therefore, his services were outsourced and salary was increased. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The afore narrated facts are not in dispute. The dates, link in the chain of events are all a matter of record. The petitioner got appointed on honorarium on 29.06.1999 is a matter of record. The petitioner's services were terminated on 31.12.2000 as his appointment was temporary. This was called in question by invoking the provisions of the ID Act i.e. Section 10(4)(a) of ID Act before the labour Court. The Labour Court in terms of its order -6- NC: 2023:KHC-D:11270 WP No. 105932 of 2014 dated 17.02.2008 allows the petition in part. The order reads as follows:
"The petition filed by the petitioner is allowed partly.
The order of termination dated 31.12.2000 is hereby set aside.
The respondents are directed to reinstate the services of petitioner with continuity of service. The prayer for back wages and consequential benefits is rejected.
Looking to the facts and circumstances of the case I direct both the parties to bear their own costs."
8. The labour Court set asides the order of termination dated 31.12.2000 and directs reinstatement of the petitioner with continuity of services only and all other benefits were taken away. Therefore, the petitioner was not in service from the date of termination up to 17.02.2008 i.e. the order of the Labour Court. Therefore, it cannot be said that there was break in service in the career of the petitioner. The petitioner then was re-appointed or restored status-quo ante by the respondent-Corporation. The petitioner joins back on 25.09.2009. After re-entry of the -7- NC: 2023:KHC-D:11270 WP No. 105932 of 2014 petitioner into service, comes a representation on 11.03.2010 seeking the benefit of regularization of services as also higher pay scale as he was stagnating in Rs.5,000/- for over 10 years. The respondent acceded to the request of the petitioner for grant of higher pay scale but through a different method. His services were placed to an outsource agency, by way of which alone, the petitioner could be granted enhanced salary of Rs.15,000/- per month. The claim of the petitioner for regularization has been turned down by the Corporation. It is this order that has driven the petitioner to this Court in the subject petition.
9. The contention of the petitioner that he is entitled for regularization is, on the face of it, unacceptable. The petitioner was not appointed against the sanctioned vacant post. The petitioner neither continued in employment for more than 10 years, without the aid of the Court, though, continuity of service is granted by the Labour Court. The petitioner continues later in honorarium basis as his rights were restored status-quo ante as was prevailing at the time when he was terminated. The petitioner accepts the said -8- NC: 2023:KHC-D:11270 WP No. 105932 of 2014 order, reports to duty and continues to work. After about one year of working, makes a claim for regularization. The Apex Court in the case of Secretary, State of Karnataka and others v. Umadevi and others reported in (2006) 4 SCC 1 has laid down certain parameters for grant of regularization. The Apex Court has held as follows:
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 :
1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, -9- NC: 2023:KHC-D:11270 WP No. 105932 of 2014 in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
10. The Government has notified certain orders on 13.11.2006 depicting implementation of the judgment of the Apex Court in Uma Devi's case (supra). 4 postulates are laid down. It reads as follows:
i) Such daily wage employees were appointed in vacant sanctioned post.
ii) They should have duly qualified to work in such vacant sanctioned post.
iii) They should have worked 10 years or more in duly sanctioned post.
iv) They should not have worked under covers of orders of Courts or of Tribunals.
11. In the 4 postulates that are laid down in Uma Devi's case (supra), the petitioner falls in the 1st postulate, as he was appointed on honorarium on a consolidated pay and not against a sanctioned vacant post nor is continued for long time in any sanctioned vacant post. Therefore, the
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NC: 2023:KHC-D:11270 WP No. 105932 of 2014 claim of the petitioner that he be regularized, if acceptable, would run counter to the judgment of the Apex Court in the case of Uma Devi and therefore it is rejected.
12. Insofar as the claim of the petitioner that his services could not be placed to an outsource agency is concerned, it is open for the petitioner to submit a representation to the respondent-Corporation seeking restoration of his services into the services of the Corporation, qua his eligibility, entitlement, experience and all other traits that are necessary to consider the petitioner as a temporary employee back into the services of the Corporation. No positive mandamus would lie to do a particular act which the petitioner is now claiming, as the petitioner's right towards that itself is inchoate.
13. For the aforesaid reasons, the following ORDER i. The petition is allowed in part.
ii. The claim for regularization of the petitioner stands rejected.
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NC: 2023:KHC-D:11270 WP No. 105932 of 2014 iii. The petitioner is permitted to submit a representation with regard to his continuity of his service condition placing his services through an outsource agency. The respondents shall consider the same in accordance with law and pass appropriate orders thereof.
Sd/-
JUDGE kmv ct:bck