Karnataka High Court
Shri S R Krishna vs The State Of Karnataka on 22 February, 2022
Author: H. T. Narendra Prasad
Bench: H. T. Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
W.P.No.40212 OF 2018(S-RES)
BETWEEN:
1. Shri. S.R.Krishna
Since dead by his LRs.
1(a) Smt. Varalakshmi,
W/o Late S.R. Krishna,
Aged about 46 years.
1(b) Shri. S.K. Santhosh Kumar,
S/o Late S.R.Krishna,
Aged about 27 years.
1(c) Shri. S.K. Gurumurthy,
S/o Late S.R.Krishna,
Aged about 26 years.
All are residing at TMC Colony,
Kushalnagara,
Sakaleshpura,
Hassan District. ... Petitioners
(By Smt. Avani Chokshi, Advocate for
Sri. Clifton D Rozario, Advocate (VC))
AND:
1. The State of Karnataka,
Represented by its Secretary,
2
Department of Urban Development,
M.S. Building,
Bangalore-560001.
2. The Director of Municipal Administration,
Vishweshwaraiah Towers,
Ambedkar Veedi,
9th Floor, Bangalore-560 001.
3. The Deputy Commissioner,
Hassan District,
Hassan-573134.
4. The Sakaleshpur Town Municipal Council,
Sakaleshpur,
Hassan District-573134,
Represented by its
Chief Officer.
5. Committee for Regularization
of D-Group Daily wage
workers of Urban Local Bodies,
Hassan District,
Hassan-573134,
Represented by its
President & Deputy Commissioner,
Hassan. ... Respondents
(By Smt. M.C.Nagashree, AGA for R1 to R3 & R5(PH):
Smt.Rakshitha D.J., Advocate for R4(PH))
This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to set aside the minutes
of the meeting of the R5, Committee for Regularization of
D-Group Daily Wages Workers of Urban Local Bodies,
Hassan District, dated: 09.08.2016 vide Annexure-N and
minutes of the meeting dated: 16.12.2016 vide Annexure-
P insofar as it relates to the petitioner and etc.
3
This writ petition, coming on for preliminary hearing
in 'B' Group, this day, the Court, made the following:
ORDER
In this writ petition, the petitioner has sought for the following reliefs:
"(1) Issue an appropriate writ, order or direction setting aside the minutes of the meeting of the 5th respondent, Committee for Regularization of D-Group Daily Wage Workers or Urban Local Bodies, Hassan District, dated 09.08.2016 (placed as Annexure-N) and minutes of the meeting dated 16.12.2016 (placed as Annexure-P) in so far as it relates to the petitioner.
(2) Issue an appropriate writ, order or direction setting aside the letter dated 25.11.2017 issued by the 2nd respondent bearing No.20409, DMA 2 DWE 2017-18 (placed as Annexure-Q) and endorsement dated 13.03.2018 issued by the 3rd respondent bearing No.MU Ni Si (1) Sibbandi/338/2014-15 (placed as Annexure-R).4
(3) Directing the 3rd and 4th respondents to regularize and absorb the services of the petitioner, retrospectively from the date of his appointment, and to grant all consequential benefits therefrom"
2. The original petitioner S.R.Krishna was appointed as Powrakarmika in the fourth respondent on 07.03.1991. During the pendency of the writ petition he died and his legal representatives are brought on record.
3. The brief facts of the case are that the fourth respondent has issued a notification inviting applications to fill up the posts of Powrakarmikas. The said notification dated 21.11.1990 has been produced as Annexure-A. Pursuant to that, the petitioner has filed an application. Thereafter, the fourth respondent has passed a resolution on 06.03.1991 selecting the petitioner for employment as Powrakarmika. The 5 resolution is produced as Annexure-B. Thereafter, an Official Memorandum has been issued on 07.03.1991 appointing 11 persons including the petitioner as Powrakarmika in accordance with Rule 4(2) of the Karnataka Municipalities (Recruitment of Officers and Servants) Rules, 1971 (for short, '1971 Rules'). The same is produced as Annexure-C. From that day, the petitioner was working in the fourth respondent Town Municipal Council. Thereafter the petitioner has given representations dated 21.01.2012 vide Annexure-D and 09.04.2012 vide Annexure-E to the fourth respondent, seeking regularization of his services. In reply, the fourth respondent has issued an endorsement dated 18.07.2016 vide Annexure-F stating that he cannot be treated as permanent employee and he would be paid only minimum wages. Being aggrieved, the petitioner has approached this Court in W.P.No.32357/2013. This Court, by order 6 dated 09.06.2014 (vide Annexure-H) has allowed the writ petition and held that since the petitioner's appointment is made after following due procedure of law and the petitioner was holding a permanent post, he is entitled for monetary benefits to the post as a permanent employee. The said order has been challenged by the fourth respondent before a Division Bench of this Court in W.A.No.1568/2014. The Division Bench of this Court has modified the learned Single Judge's order that the petitioner is a temporary employee and the order passed by the learned Single Judge to the effect that the petitioner is a permanent employee and he is entitled for all the monetary benefits has been set aside. Liberty was reserved to the petitioner to claim for regularization in accordance with law. Pursuant to that order passed by the Division Bench of this Court, the impugned endorsement has been issued and the petitioner's 7 request for regularization has been rejected on the ground that he has not been appointed against a regular post. Being aggrieved by the same, the petitioner is before this Court.
4. The learned counsel appearing for the petitioner has submitted that the petitioner has been appointed by the fourth respondent after issuing notification through paper publication calling for the post of Powrakarmikas. Pursuant to that, the petitioner has applied for the same. Along with the petitioner totally 11 persons have been selected by passing a resolution. The petitioner has been appointed by Official Memorandum dated 07.03.1991 vide Annexure-C. From that day, the petitioner has been continuously working in the fourth respondent Town Municipal Council. Since the petitioner has been appointed against a clear vacancy, after following due process of law, in terms of the judgment of the 8 Hon'ble Apex Court in the case of SECRETARY TO THE STATE OF KARNATAKA AND OTHERS vs. UMADEVI reported in (2006) 4 SCC 1, since the petitioner has completed more than 10 years of service as a temporary employee, he is entitled for regularization. Without considering this aspect of the matter, the respondent has issued the impugned endorsement. The same is unsustainable.
5. She further contended that the impugned order is issued contrary to the materials available on record. Even the cases of the persons who were appointed along with the petitioner have been considered for regularization and the same are placed on record as Annexures-S, T and U. The respondent has discriminated the case of the petitioner and the same is violative of the rights guaranteed to the petitioner under Article 14 of the Constitution of India. Hence, he sought for allowing the writ petition. 9
6. Per contra, the learned counsel appearing for respondent No.4 has submitted that since the petitioner was appointed under Rule 4(2) of the 1971 Rules as Powrakarmika, it is only for a period of one year. Since the petitioner's appointment is not against a sanctioned post, he does not satisfy the conditions mentioned in UMADEVI (supra).
7. Heard the learned counsel appearing for the parties and perused the writ papers.
8. The petitioner S.R.Krishna was appointed as a Powrakarmika. During the pendency of this writ petition he died and his legal representatives have been brought on record. The petitioner has been appointed pursuant to the notification issued by the respondent calling for applications for filling up the posts of Powrakarmikas. The notification is issued as per the provisions of Rule 4(2) of the 1971 Rules. 10 Pursuant to the said notification the petitioner had applied for the said post. The fourth respondent vide Annexure-B has passed the order selecting 11 persons including the petitioner vide Annexure-C dated 07.03.1991. As per the Official Memorandum the said 11 persons have been appointed as Powrakarmikas. From that day, the petitioner is continuously working in the fourth respondent as Powrakarmika and he has worked for more than 10 years. The fourth respondent has passed a resolution vide Annexure-N dated 09.08.2016 stating that as per the Government Order dated 21.06.1991 the post of Powrakarmika is only for one year. Therefore, the petitioner has not satisfied the condition No.1 as per UMADEVI (supra). This finding of the respondent is contrary to the materials available on record. It is very clear from the Notification dated 21.11.1990 they have called for applications for filling up the posts of Powrakarmika 11 pursuant to Rule 4(2) of the 1971 Rules. Thereafter the petitioner had applied for the post and vide Annexure-B resolution has been passed wherein the petitioner herein was selected along with 10 other persons. Vide Annexure-C dated 07.03.1991 they have been appointed as Powrakarmikas. Even though as per Rule they have appointed for one year, thereafter their services has been continued without any break and they have worked for more than 10 years. The respondents while considering the case of the petitioner has not considered this aspect of the matter. Even as per the impugned endorsement vide Annexure-R the reasons given by the respondents is that the petitioner has not satisfied the condition No.4 and that he has been continued in his service with the intervention of the court order. In the impugned order they have not explained on which court order his services has been continued and no document has 12 been forthcoming. Therefore, the impugned order Annexure-R is without application of mind. Even the cases of persons who have joined along with the petitioner, i.e., one N.Rangaswamy, Kannaiah and Bannari have been considered for regularization. The order of regularization has been produced as Annexures S, T and U. Therefore, the impugned order Annexures P, Q and R have been passed contrary to the right guaranteed to the petitioner under Article 14 of the Constitution of India and the same is unsustainable and liable to be quashed.
9. Accordingly, the writ petition is allowed. Annexures N, P, Q and R in respect of petitioner is concerned are hereby quashed. The respondents are directed to reconsider the case of the petitioner keeping in mind the law laid down by the Hon'ble Apex Court in the case of UMADEVI (supra). 13
In this case, during the pendency of the writ petition, the petitioner died. If the respondents regularize the services of S.R.Krishna, the benefits to which he would be entitled to after regularization has to be considered in favour of the legal representatives of S.R.Krishna.
Sd/-
JUDGE Cm/-