Karnataka High Court
Swamy B.N. And Ors. vs State Of Karnataka And Ors. on 8 November, 1995
Equivalent citations: (1999)IIILLJ1169KANT
ORDER M.F. Saldanha, J.
1. These group of petitions relates to the year 1992 and 1993. In fact, despite the fact that the subject-matter of these petitions is something like eight years old, the earlier orders passed by this Court will indicate that the grievance of the entire set of petitioners who are Law Officers of the B.D.A. was to the effect that they are kept in a state of uncertainty insofar as no regulations had been framed as far as their employment is concerned and that therefore, they were highly prejudiced. The added circumstances to my mind which also requires to be taken into account is the fact that the petitioners are all performing various legal functions and are effectively Advocates which is a matter which this Court requires to take special cognizance of. Pursuant to the earlier orders passed, the Government finally approved the regulations and the basic grievance therefore is redressed. At that stage one further difficulty emerged which 1 shall briefly summarize. In the entire group of petitions that are before me, there are in all 23 persons who have been appointed at different points of time. The Government in all has sanctioned 10 posts and therefore as far as the subsidiary relief claimed in the petitions is concerned this Court is required to further examine the matter. Petitioners have contended that they have been serving the respondent authority and that therefore their services should be regularised and that they should not be discontinued. If the number of posts is limited to 10, undoubtedly the question would arise as to what happens to the remaining 13 petitioners. As far as this aspect of the matter is concerned the B.D.A. has adduced a variety of reasons which I shall deal with in; support of its plea that the approved strength of 10 posts is more than adequate and that it is unnecessary to increase that strength. That position has been seriously disputed by the learned Counsel who represent the various petitioners who have also placed on record their replies and certain material.
2. This group of petitions have been coming up before the Court from time to time and they have once again come for orders today. I have heard the learned Advocates who represent the different petitioners and the learned Advocate who represents the B.D.A. with regard to every aspect of the matter, as also the learned Government Advocate who has also made his submissions.
3. Normally, there would have been no necessity to issue any further directions after the regularisation in question has been approved by the Government. However, as indicated by me, since the petitions contain a subsidiary relief to. the effect that the services of the petitioners should have to be regularised, the need has arisen for the Court to examine the question as to whether or not this prayer can be granted and if so, in which of the cases. Learned Counsel who represent the B.D.A. have submitted that the regulations have been promulgated; that the B.D.A. will act in consonance with those regulations and that out of a sense of abundant fairness to all the petitioners, that the posts will be advertised and that it will be open to the petitioners if they so desire to apply for those posts. Learned Counsel has also pointed out that the petitioners having worked for several years in the legal department that this will be given due weightage while selecting the candidates. They have also emphasised the fact that in keeping with the regulations, various factors have to be taken into account such as the question of in-service/ promotion/reservation etc., and that these are aspects which cannot be by-passed. In sum and substance they have contended that the Court may fix a prescribed dead line within which time all these formalities will be completed.
4. On the question of the regularisation aspect, the B.D.A. and in particular the Commissioner have filed detailed submissions in the form of affidavits. Several aspects of the matter have been highlighted which I shall briefly summarize. Firstly, what is contended is that the authority is required to act with a high degree of caution in matters such as these because the economic aspect has to be taken into account. Secondly, the B.D.A. has contended that as far as the handling of legal work is concerned, that it has appointed various panels of Standing Counsels and Advocates for purposes of conducting these cases and even as far as the giving of opinions are concerned, and that therefore, the Law Officers are only performing an intermediate role of gathering the facts, preparing para wise reports and instructing the Advocates etc. The contention is that with the appointment of these panels of lawyers, the work load as far as the requirement of Law Officers has fallen and that it is not rising. Another aspect of the matter that has been high-lighted is that the various functions of the B.D.A. as far as the future is concerned are highly uncertain principally because of the formation of other authorities such as the B.M.R.D.A. etc., and that in totality there is absolutely no need for more than 10 posts which have been sanctioned by the Government.
5. As far as the aspect of economy is concerned, I do not dispute the fact that the B.D.A. and the Commissioner are quite right insofar as all Public Authorities are required to act responsibly and in matters such as escalation of costs, there is no dispute about the fact that one is required to act with a high degree of circumspection. This does not however get away from the position that where essential requirements are concerned that necessary provision will have to be made. The respondents have inter alia pointed out to the Court as to what are the various functions that the Law Officers are required to attend to which are in addition to the Court cases. Even as far as the cases are concerned they have demonstrated that there is a steady increase in the number of litigations and that as of now, they are approximately at 6,000 cases. I have very carefully applied my mind to this aspect of the matter because this is something which is eminently in the public interest insofar as the litigations are concerned this authority is required to handle them efficiently which presupposes the fact that adequate manpower must be there within the authority. Further more what needs to be taken into account is that a reasonable estimate has to be made by the Court as far as the various fora before which the litigations are pending, the nature of those litigations and the over all work load that is required to be handled. This in my opinion is a crucial and an integral aspect of the matter because unless there is adequate staffing as far as these departments are concerned, the administration of justice will seriously suffer. The B.D.A. may appoint a large panel of Advocates to represent it but one cannot expect each of the individual Officers of the B.D.A. to leave his functions, bring the records and instruct the Advocates directly. It is for this reason that the set up of legal departments as far as Corporations are concerned has become very necessary and to my mind therefore regardless of the economic constraints adequate strength as far as this department is concerned will have to be maintained. This is an essential and overriding requirement in the face of which the sensitive argument that there are financial constraints is something which I refuse to accept.
6. As far as the other two aspects of the matter are concerned it has been contended that the functions as far as the B.D.A. are concerned are materially decreased. This to my mind is a complete misnomer. It is true that the Government has set up various other authorities but the reason for it is because in the metropolitan areas it is often found that the cities are growing virtually out of control, that it is impossible for one or more authorities to adequately deal with the situation and therefore it is well within the jurisdiction of the Government to set up apex bodies or other bodies. As the matters now stand I do not share the view that in the foreseeable future there shall be any reduction or fall in the functions of the B.D.A., on the contrary a responsible appraisal will definitely indicate that these would naturally increase and multiply. The argument canvassed by the petitioner's learned Advocate is that these are aspects of the matter which are well within the jurisdiction of the Court while issuing directions in this set of writ petitions.
7. There is one interesting aspect of the matter that was seriously canvassed by the respondent's learned Advocates which concerns a legal dimension of the cases. These are proceedings under Article 226 of the Constitution and undoubtedly the inherent powers of this Court are very wide. The learned Counsel have however pointed out that those powers are not unlimited and that judicial decisions have laid down within what parameters the Courts can exercise those powers. In sum and substance reliance has been placed on a decision of Supreme Court in Uttar Pradesh State Road Transport Corporation and Anr. v. Mphd. Ismail and Ors. (1991-1I-LLJ-332), wherein the Supreme Court had occasion to observe that when a Public Authority or a Government exercise discretion validly the Court is precluded from interfering with that discretion and imposing its own views on the authority or on the Government. There is no dispute with regard to this principle of law, but the aspect that the Court needs to look into is as to whether the discretion that has been pleaded has been validly exercised. In cases where discretion exercised is not valid it is certainly open to the Court to direct corrective action. Similarly reliance was placed on another decision of the Supreme Court in State of Haryana and Ors. v. Piara Singh and Ors. (1993-II-LLJ-937). In this case the Supreme Court had observed that the creation of posts is something within the prerogative of the authority or the Government and that even in cases where the Court may consider it appropriate to direct regularisation of posts, that this should be done with due care and caution, having regard to all relevant circumstances and more importantly the consequences of such a direction. Though the Supreme Court had very clearly slated that the Government and Public Authorities should function as model employers and that they should avoid any instance of exploitation such as keeping the employees in a temporary or ad hoc basis for an abnormally long time, the Supreme Court had occasion to strike down an order of the High Court which was a blanket order directing that all persons who had completed one year of service should be regularised. The principles laid down in this judgment undoubtedly most relevant must be followed and the respondents learned Advocates are right when they point out that the power to direct regularisation must be used only in selected and appropriate cases. It is an exceptional power which overrides several other necessary requirements which I shall deal with next.
8. Learned Counsel appearing on behalf of the authority have drawn my attention to two aspects of the matter; the first of them being that the petitioners were appointed pursuant to specific notices of the fact that the posts were of a short duration and in any event until such time as regular appointments were made. It is therefore submitted that none of the petitioners have any right to contend that their services should be regularised. The allied argument is that since these were ad hoc appointments on a stop-gap basis that all the principles were not taken into account such as the setting up of a selection committee, the provision for reservation, adequate quota for promotees vis-a-vis direct recruits etc., had not been followed insofar as this was only a temporary measure. What is submitted is that in view of these background facts, that if the Court for any reason were to direct regularisation, that it would be offending the procedural requirements and principles which must be necessarily taken into account. It is also pointed out that there is a particular procedure prescribed for recruitment to the posts in question and that this is a requirement which cannot be by-passed. Quite frank-ly, I fail to see any justification behind these arguments because in the first instance the Court needs to take cognizance of the fact that it is the Government who is the defaulter in this case. The regulations ought to have been framed and finalised in good time and had that exercise been completed, none of these confusions would have arisen. If the Government has defaulted and put the authority in a problematic situation because of its default, the consequences of that situation cannot be visited on the petitioners for the simple reason that had the regulations been in existence, those who were appointed would have been regularly appointed in duly sanctioned and approved posts right from the very beginning. Undoubtedly the B.D.A. does require a certain number of persons to man these positions and had the regulations been formulated in good time, the benefits would have accrued to all these persons who would have been appointed through the regular process. This has not been done and at the end of 1995, when the regulations have now been finalised the difficult situation that has arised is as to what is the position of those persons who have been doing these job functions during the interim period. A grievance was made on behalf of the B.D.A. that at different points of time, various petitioners came to be appointed some of them had hardly put in one or two years in service when the petitions were filed and this Court granted interim relief. It is submitted that several applications were made for vacating the interim orders and this Court had declined to do so as a result of which the petitioners have been continuing virtually under the Court's order. The law with regard to the special procedure relating to regularisation is more or less well crystallised and the judicial decisions do take into account the fact that when regularisation is ordered, a set of procedures are necessarily required to be bypassed. This is not an ideal situation but it becomes necessary in order to avoid manifest injustice. As indicated by me earlier, the equities in this case lie heavily on the side of the petitioners insofar as they have been kept in a situation of uncertainty for no fault of theirs whatsoever. The question of whether their appointment orders conferred any rights or not is.therefore purely academic and the simple question that calls for determination is whether in the present situation the Court would be justified in directing that they should not be terminated.
9. As far as this last aspect of the matter is concerned the predominant consideration is the fact that in my considered view the projected requirements or estimate of 10 posts is hopelessly outdated. It has already come on record that the matters in relation to the rules in question are something like eight years old and even though the B.D.A. vehemently contended that even in the changed circumstances the requirement is very much the same for the reasons already indicated by me I am unable to accept that position. The material that has been produced before me more than adequately demonstrates that the requirement is very much more than what has been assessed by the B.D.A, This is not a question of exercise of discretion as has been pointed out by the B.D.A. lawyers as it is a question of making adequate arrangements to handle the work of a public corporation which has a direct bearing on the administration of justice insofar as the majority of this work concerns the Court. Therefore, I do consider it to be of vital concern that when a wholly outdated and incorrect estimate of manpower requirement is projected to the Court that this Court will have to interfere and direct the; Government to reconsider the matter on the basis of actual and projected requirements and to enhance the cadre-posts to that extent.
10. On a careful consideration of the material that is placed before the Court 1 find that regardless of the various heads of objection that have been raised, that there can be no dispute with regard to a few other heads. In the first instance the B.D.A. was required to recruit the petitioners at different points of time because their services were very necessary. This procedure continued right up to the year 1989-90 or even thereafter and the present complement of 23 petitioners is on the basis of the requirement that is already four years old. I have no hesitation in holding that requirement of the B.D.A. as far as this department goes is definitely more than what it was in 1991. Regardless of what has been pointed in the replies which to my mind are incorrect and unsatisfactory, this Court will have to take into account that when the cadre strength was sanctioned in the year 1995, the Government ought to have assessed the requirements not only on the basis of the present year but also of the foreseeable future. It is on this basis that the Court is required to record that the cadre strength of 10 posts is therefore not only inadequate but incorrect and will have to be revised. Unless this is done, it would be impossible to accommodate the petitioners.
11. The question that arises is as to whether the Court would be justified in directing that the services of all the 23 petitioners should be regularised. As far as this is concerned there is no dispute about the fact that it is on the basis of their qualifications and experience that the B.D.A. had recruited them and that they had been working in the department for different periods of time. Even in the replies filed on behalf of the B.D.A. there is no statement to the effect that any of them lack the requisite expertise to handle the jobs in question. Their qualifications were assessed before they were recruited. They have been working for the last several years and to my mind there is no impediment whatsoever with regard to the regularisation of the 23 petitioners.
12. The last question that the Court will have to take into consideration is with regard to the various provisions such as reservations that are contained in the regulations that are approved. Whereas an argument was advanced on behalf of the respondents that the appointments can only be freshly made on the basis of requirements of these rules one needs to take note of the fact that these rules can only have prospective application and cannot be pressed into service retrospectively and that to the cases of the petitioners whose rights will be infringed if that procedure is permitted. Apart from that, such a situation is legally impermissible. Under these circumstances the principles that are laid down in the rules will undoubtedly hold good in regard to other persons inducted into the department after the services of the petitioners are regularised. Regularisation is an exceptional procedure and is something which a Court may direct on a one time basis, but this will have no applicability to the rules.
13. The petitions accordingly succeed. The only relief that is required to be granted is in the form of a two-fold direction. These cases relate to disputes that are many years old. The basic corrective action has already been taken by the Government and the only minor modification that is now required is insofar as the Government will have to on the basis of the correct data and the projected work load, fix the correct cadre strength as far as these posts are concerned, not only bearing in mind the current requirement, but also the requirement for the foreseeable future. Under these circumstances the Government is directed to take appropriate corrective action for purposes of enhancing the number of posts in the cadre and such action shall be completed latest by December 31, 1995.
14. It is directed that having regard to the aforesaid situation the services of the 23 petitioners shall be regularised with effect from January 1, 1996. The petitions accordingly succeed and stand disposed of. In the circumstances of the case there shall be no order as to costs.
It is clarified that with effect from January 1, 1996 all the petitioners will be entitled to the salary and all other benefits that are attached to the posts in question.