Karnataka High Court
Srinivasappa N vs The State Of Karnataka on 14 February, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COUR.T OF KARNA'rAKA
AT DAN GALO RE
DATED THIS THE 14Th DAY OF FEBRUARY, 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P. Nos.33515-33529/201 1 (SREG)
BE1WEEN
SRINIVASAPPA N
5/0 NANJUNDAPPA
AGED ABOUT 52 YEARS,
C BYREGOWDA NAGAR
KOLAR TOWN 563 101
2 V MUNIYAPPA
S/0 LATE VENKATARAMAPPA
AGED ABOUT 49 YEARS,
PAREHOSAHALLI VILLAGE,
KAMANDAHALLI POST
KOLARTALUK 563 101
3 T NARAYANASWAMY
S/O THIMMAJAH
AGED ABOUT 51 YEARS,
KODICHERUVU VILLAGE.
GUMMAREDDYPURA (POST)
SRINIVASAPURA TALUK,
KOLARTALUK 563 136
4 K N REDDAPPA
S/O NARASAPPA
AGED ABOUT 48 YEARS.
KOORIGEPALLI VILLAGE,
KOORIGEPALLI (POST)
SRINIVASAPURA TALUK,
KOLARTALUK 563 136
5 Y J HANUMANTHAIAH
S/O JAVAREGOWDA
AGED ABOUT 58 YEARS.
PARTHAPPA TAILOR, M G ROAD.
SRINIVASAPURA TOWN.
SRINIVASAPURA TQ.,
KOLARTALUK 563 136
-2-
6 JAYAPPA
Sb CHINNAPPA
AGED ABOUT 54 YEARS,
MARUTHI EXTENSION,
SRINIVASAPURA TOWN.
SRINIVASAPURA TQ..
KOLAR TALUK 563 136
7 fJ7 AHMED
J
T
Sb ABDUL SWBAN
AGED ABOUT 49 YEARS.
MILLATH NAGAR,
MADEENA MSZID ROAD,
KOLAR 563 101
8 M SRINIVASA
5/0 MUNISWAMAPPA
AGED ABOUT 52 YEARS.
D NO. 21, 5Th CROSS,
GOWRIPET,
KOLAR 563 101
9 T.V. RAMACHANDRAPPA
S / 0 VENKATARAMAPPA
AGED ABOUT 49 YEARS,
MANCHINEELAKOTE (POST)
SRINIVASAPURA TALUK
KOLARDIST. 563 136
10 M VENKATESH
S/O MUNINARAYANAPPA
AGED ABOUT 57 YEARS.
GOWRIPET, 6TH CROSS,
KOLAR TOWN, 563 101
KOLAR TALUK
11 SRI, MUNISWAMY
Sb NARAYANAPPA
AGED ABOUT 48 YEARS.
2ND MAIN ROAD. 1ST CROSS,
GNADHINAGAR
KOLAR 563 101
12 SRI. Y S NARAYANASWAMY
Sb SONNAPPA REDDY. 50 YEARS,
R/A YACHANAHALLI,
HEGGANAHALLI POST,
SRINVIASAPURA TALUK 563 101
KOLAR DIST.
-3-
13 SRI. P RANGAPPA
Sb PILLAPPA
AGED ABOUT 49 YEARS,
R/A MALLANGUR VILLAGE,
BANGARPET TALUK 563 114
KOLAR DIST.
14 SRI. CHANNAPPA
Sb LAKSHMAN
AGED ABOUT 50 YEARS,
R/A CHIKKAKANTHUR
MALUR TALUK,
KOLAR DIST. 563 130
15 MNSHIVANNA
Sb NALLAPPA REDDY
AGED ABOUT 47 YEARS,
R/A MARUTHINAGAR,
SRINIVASAPURA TOWN
KOLAR DIST. 563 101 ... PETITIONERS
(BY SRI. R BHADRINATF{, ADV. FOR SOUTHERN LAW
ASSOCIATES, ADVS.,)
AND
THE STATE OF KARNATAKA
BY ITS SECRETARY..
DEPARTMENT OF RURAL
DEVELOPMENT AND PANCHAYATH RAJ
VIDHANA SOUDHA,
BANGALORE-560-001.
2 ThE PRESIDENT
ZILLA PANCHAYAT
KOLAR 563 101,
KOLAR DIST.
3 THE CHIEF EXECUTIVE OFFICER
ZILLA PANCHAYAT
KOLAR 563 101,
KOLAR DIST.
4 ThE EXECUTIVE ENGINEER
PRE DIVISION
KOLAR 563 101,
KOLAR DIST.
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5 THE ASSISTANT EXECUTIVE ENGINEER
P.R.E SUB-DIViSION
MULBAGAL TALUK
KOLARDIST.563 131
KOLAR DISTRICT.
6 THE ASSISTANT EXECUTIVE ENGINEER
P.RE SUB-DIVISION
SRINIVASAPURA
KOLARDIST.563 136
7 THE DISTRICT WELFARE OFFICER
KOLAR DISTRICT
KOLAR 563 101. ... RESPONDENTS
(BY SRI.JAGADEESH MUNDARAGI, AGA FOR Ri,
SR1.M NARAYANA REDDY. ADV. FOR R2-R6)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE RESPONDENTS TO REGULARIZE ThE SERVICES
OF THE PETITIONERS IN THE POSTS HELD BY THEM AS PER
THE GOVT. CIRCULAR DATED 13.11.2006 AS PER ANNEXURE
A.. DIRECT THE RESPONDENTS IMPLEMENT CIRCULAR DATED
13.11.2006 ISSUED BY GOVT. OF KARNATAKA AS FOUND AT
ANNEXURE A, BY GRANTING ALL SERVICE BENEFITS
IMMEDIATELY AFTER COMPLETION OF 10 YEARS OF SERVICE
TO THE PETITIONERS AND DIRECT THE RESPONDENTS TO
GIVE THEM REGULAR PAY SCALE IN RESPECT OF POSTS HELD
BY THEM ON THE BASIS OF EQUAL PAY FOR EQUAL WORK AS
CONTEMPLATED UNDER ARTICLE-39 OF CONSTITUTION OF
INDIA FROM ThE DATE OF THEIR EMPLOYMENT.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT PASSED ThE
FOLLOWING:
ORDER
Petitioners are seeking for a Writ of Mandamus to regularise their services to the posts held by them and to implement the circular dated 13.11.2006 vide Annexure-A by granting all service benefits immediately after completion of ten years of service with a further direction to the respondents to give them regular pay scale in respect of posts held by them on the basis of equal pay for equal work as contemplated under Article 39 of the Constitution of India from the date of their employment and a writ of prohibition has also been sought to restrain the respondents from terminating the services of the petitioners.
2. Heard Sri Badrinath, learned Counsel appearing for petitioner, Sri Jagadeesh Mundargi, AddL Government Advocate for respondent No.1 and Sri M Narayana Reddy, learned counsel for respondents 2 to
6. Perused the grounds urged in the Writ Petition as also the defence put up by respondents 2 to 6 in their statement of objections.
3. Petitioners contend that they were appointed between 1984 to 1989 as Group C and D employees and have been discharging their duties as daily wagers for more than 20 to 25 years without any break. The details of nature of job carried on by petitioners, their date of employment, place of employment are as under:
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-6- SL. PE'I1TIONERS NATURE OF DATE OF ' PlACE OF JOB OF APPOIN1- PETITIONERS WORKING MENT I 1 N.Srinivasappa Literate 23.07.1985 PRE Sub Assistant Division, Kolar 2 V.Muniyappa Literate 26.01.1990 PRE Sub Assistant Division. Kolar 3 T.Narayanaswarny C. Group 10.06.1986 PRE Sub- Employee Division. Kolar 4 K.N.Reddappa D. Group 26.07.1986 -do L Employee 5 Y.J.Hanurnanthaia h D.Group Employee 1 08.08.1984 -do 6 Javappa D.Group 02.09.1984 PRESub Employee Division, Srinivasapura __________ __ Mulbagal , 7 Rizwan Ahamed D.Group 26.04.1985 Taluk Employee Panchayath, Kolar 8 M.Srinivasa D Group 10.02.1985 Taluk Employee Panchayath, Kolar 9 T.V.Ramachandrap D Group 05.04.1985 PRE Sub- pa Employee Division, Srinivasapura 10 M.Venkatesh D. Group 26.04.1985 PRE Sub- Employee Dvn, Kolar 11 Muniswamy D. Group 26.08.1988 PRE Sub- Employee Dvn. Kolar 12 Y.S.Narayana- Watchman 02.09.1984 PRE Sub swamy Division. Srinivasapura 13 P.Rangappa Watchman 29.11.1989 IPRE Sub Dvn. Bangarpet 14 M.N.Shivappa Literature 1.1.1986 PRE Sub . Assistant Division. Srinivasapura 15 Channappa D.Group 15.06.1987 Govt. Boys employee Hostel, Takel __________ _ Malur -7-
4. It has been contended that petitioners have been working In their respective posts for more than two decades without any break and as such, they are entitled for regularisation to the posts held by them. It is also contended that salary paid to them is on the lower side compared to employees discharging similar duties who are being paid higher salary and petitioners are also entitled to the same salary. They further contend that Public Health Engineering Department (well boring) is fully controlled by the Rural Development and Panchayath Raj Department and the 71k Panchayath '2nd respondent' herein undertakes the implementation of works of abovesaid department and the schemes are being implemented by the Government through Zilla Panchayath. It is contended that despite several requests and demands, their services have not been regularised and the circular dated 13.11.2006 came to be issued by the Government of Karnataka which covers the claim of petitioners and the conditions stipulated therein. Further, it is contended that some of the employees similarly placed as that of petitioners -8- have approached this court in Writ Petition No.37082-
37088/20 10 and this court by order dated 5.1.2011 had issued a direction to regularise the services of petitioners therein as per circular dated 30.11.2006 which order came to be affirmed in WA No.5648- 54/201 1 by Division Bench of this court by order dated 3.8.20 1 1 and as such, petitioners claim they are also entitled for similar relief. It is submitted that subsequent to the order passed by this court, representations have been given by petitioners to respondents 1 to 3 and respondents 2 & 3 are threatening the petitioners that their services would be terminated without notice. It is contended that prayer sought for in the Writ Petition be granted and the principles enunciated by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Urnczclevi arid others., reported in (2003) 6 SCC 1 particularly paragraph 42 is squarely applicable to the claim made by petitioners and as such, he prays for allowing the Writ Petition.
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5. Per contra, Sri M. Narayana Reddy, learned counsel appearing for respondents 2 to 6 would submit that petitioners have not been appointed against any sanctioned posts with required qualification and their initial appointment itself is illegal and they are not covered with the exceptions carved out in paragraph 53 of Umadevi's case and as such, petitioners are not entitled for being regularised. It is also contended that daily rated employees must be deemed to have been aware of the nature and consequence flowing from dicta laid down in Umadevi's case and as a matter of right, petitioners cannot claim regularisation of their employment and these petitioners have not been appointed by way of proper selection in the manner known to law. It is also contended that petitioners have not fulfilled the conditions stipulated under the Government circular dated 13.11.2006 and contends that merely because some of the employees have been regularised would not entitle the present petitioners to claim any right to seek regularisation, since facts in those cases are entirely different from the facts of the
- 10 present case and admittedly in the said case, there was recommendation made by the Zilla Panchayath to the State Government and as such, this court found that when the matter came to be remitted back by the Government to the Zilla Panchayath it would amount to deemed sanction and said situation is not present in the facts of the present case and as such, it is contended that order passed by this Court is not applicable to petitioners.
6. Having heard the learned counsel appearing for parties, I am of the considered view that following points would arise for my consideration:
(1) Whether the petitioners are entitled to seek regularisation of their services.? (2) What order.?
7. Since, learned Counsel appearing for petitioners pressed into the dicta of the Honble Supreme Court in the case of Umadevi, reported in (2006) 4 SCC 1, paragraph 53 to contend that it would be applicable to their claim, same is extracted herein below, -11-
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra). RN.
NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 above referred 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 regularize 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 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, 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
(Emphasis supplied by me)
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The said judgment was the subject matter for consideration by Hon'ble Supreme Court in the case of State of Rajasthan & Others Vs. Dava Lal & Others reported in (2011) 2 sec 429 xrhereunder the principles relating to regularisation and parity of pay has been laid down and same reads as under:
'12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or
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appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 1itigious employment. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
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(v) Part time temporary employees in government run institutions cannot claim pai it in salary with i egulai employees of the on the government prmciple of equal pay for equal work Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
8. Learned counsel for petitioners has relied upon the judgment of the Hon'ble Supreme Court in the matter of U.P. State Electricity Board Vs. Pooran Chandra Pandey & Others reported in AIR 2007 SCW 6904 whereunder the Hon'ble apex court has held that proposition laid down in Umadevi's case cannot be applied mechanically without seeing the facts of particular case and it has been held that said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution of India. It has been held by their Lordships as under:
"11. Learned Counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka & Ors. (2006)
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4 SCC 1. and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Urna Devis case (supra) is clearly distinguishable. The said decision cannot be applied to a case There regularization has been sought for in pursuance of Article 14 of the Constitution."
"16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi's case (supra) is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case.
As observed by this Court in Bhavnagar University (surpa) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Dcvi's case (supra) inapplicable to the facts of that case."
9. Thus, keeping in mind the above principles in mind when the facts on hand are examined it would emerge that this court while exercising the power under Article 226 of the Constitution of India will be loath in issuing direction for regularisation, absorption or continuation unless employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in open
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competition and against sanctioned posts. It has been specifically contended by the respondents 2 - 6 that petitioners herein were not appointed against the sanctioned posts with required qualification and their initial appointment as daily rated employment itself is an illegal appointment. Hence, petitioners are required to demonstrate that they would fall under the exceptions carved out in paragraph 53 of Umadevi's supra and until and unless petitioners would fall within the exceptional clauses, they would not be entitled to claim regularisation as a right. In the instant case, petitioners have not been able to establish that they would come within the purview of exceptions carved out in paragraph 53 of Umadevi's case to arrive at a conclusion that petitioners can claim the benefits. In the exception carved out in Umadevi's case Hon'ble Apex Court has held that initial appointment if it is irregular (not illegal) and have been appointed against sanctioned posts with due qualifications then such employees' claim requires to be considered. In the instant case, petitioners are not claiming to be duly
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qualified at the time when they were appointed and their initial appointment was not against sanctioned posts. In view of the same, petitioners do not fall within the exceptions carved out in Urnadevi's case.
10. Merely because the petitioners have continued for long number of years or on adhoc basis or as daily wagers it would not confer upon them any absolute right to seek absorption by way of regularisation. It is no doubt true in the instant case, these petitioners have been appointed as daily rated employees whenever the department work arose and they have been paid daily rated wages and at no point of time, they have been appointed by way of proper selection by applying recruitment rules. In the absence of petitioners working against sanctioned posts, it would not entitle the petitioners to seek regularisation merely because they have worked for long number of years. Sympathy cannot be a ground for passing an order of regularisation in the absence of any right vested with the petitioners so as to enable this court to exercise this
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extraordinary jurisdiction under Article 226 of the Constitution of India.
11. In so far as the judgment in the case of UP State Electricity Board relied upon by the learned counsel for petitioner is concerned, the facts therein when examined would unfold the factual matrix namely the workmen or the employees or the petitioners therein were working in a Co-operative Electrical Supply Society and had prayed for regularisation of their services in UP State Electricity Board on account of the said Society having been taken over by the Electricity Board and in the said process the electricity board had taken a decision to regularise the services of daily wage employees who were working from 4.5.1990 and on their prayer being refused they approa ched the court for a direction and in this back ground Hon'ble apex court has explained in paragraph 11 and 16 that Umadevis case cannot be applied mechanically without seeing facts of a particular case. Thus, when facts on hand are examined it emerges that admittedly there is no such resolution passed either by the Zilla panchayath or by
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the State Government agreeing and accepting that these persons are to be absorbed into services and the factual matrix that existed in UP Electricity Board case is lacking in this case.
12. Further, circular dated 13.11.2006 has been issued by the State Government subsequent to the judgment of Umadevfs case and it has been specifically mentioned if the employees who are seeking regularisation if they were fulfilled the conditions stipulated therein namely which is in consonance with the exceptions carved out in paragraph 53 of Umadevfs case alone, than such of those employees would be entitled to seek for regularisation. In the instant case, the petitioners have not been able to demonstrate as to how they would fall within the four corners of the conditions stipulated in the Circular dated 13.11.2006 nor how they would fall within the exceptions carved out in paragraph 53 of Umadevis case as discussed hereinabove. In that view of the matter, petitioners would not be entitled to any relief at the hands of this court.
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13. Now, coming to the last issue namely the judgment of this court which is very heavily relied upon by the learned counsel for petitioner it is noticed that in the said case, Zila Panehayath therein had recommended those petitioners for being absorbed and their services being regularised and had sent a proposal to the said effect to the State Government since they had been appointed prior to 1.7.1984. However, the State Government found that decision is required to be taken at the Zilla Panchayath itself and as such, the State Government remanded the matter back to the Zilla panchayath. On account of inaction on the part of Zilla panchayath, in taking a decision petitioners approached this court and in this factual matrix this court issued a mandamus to regularise the services which ultimately came to be affirmed by the Division Bench of this court. In the instant case, there is no such resolution passed by the Zilla panchayath either recommending the case of the present petitioners for being absorbed or being regularised but on the contrary, a specific stand has been taken that these petitioners
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were not appointed against any sanctioned post. Admittedly, all these petitioners have been appointed after 1.7.1984 viz., cut off date fixed under the circular date 13.11.2006 (Annexure-A). In that view of the matter also. prayer of the petitioners cannot be granted. Accordingly. point No.1 is answered against the petitioners.
RE POINT NO.2:
14. In the result, I pass the following:
ORDER Writ Petitions are hereby dismissed as devoid of merits. No order as to costs.
Sd/ JUDGE PL