Karnataka High Court
Sri G Nagabhushana vs The State Of Karnataka on 12 December, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
WRIT APPEAL NO.3876 OF 2016 (S-RES)
BETWEEN:
1. SRI. G. NAGABUSHANA
AGED ABOUT 50 YEARS
S/O K.R. GIRIYAPPA
ASSISTANT ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE
BENGALURU-560 001
2. SRI. R. BENAKESHA
AGED ABOUT 48 YEARS
S/O RAMAPPA H.
ASSISTANT ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE
BENGALURU-560 001
3. SRI. H. RAVINDRANATH
AGED ABOUT 45 YEARS
S/O V. HANUMANTHA RAO
ASSISTANT ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE
BENGALURU-560 001
4. SRI. ASHWATHA S.L.
AGED ABOUT 56 YEARS
ASSISTANT ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE
BENGALURU-560 001
...APPELLANTS
-
2
(BY SRI. ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI. R. HEMANTH RAJ, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
URBAN DEVELOPMENT DEPARTMENT
M.S. BUILDING
VIKASA SOUDHA
BENGALURU-560 001
2. THE BRUHATH BANGALORE MAHANAGARA PALIKE
CORPORATION OFFICES
J.C. ROAD
BENGALURU-560 002
REPRESENTED BY ITS COMMISSIONER
3. SRI. S. VISHWANATHA
AGED ABOUT 53 YEARS
S/O SANNAPPA
ASSISTANT ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE
BENGALURU-560 001
4. SRI. H.M. THIMAPPA
AGED ABOUT 51 YEARS
S/O H. RANGAPPA
JUNIOR ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE
BENGALURU-560 001
5. SRI. K.G. SUNDARESH
AGED ABOUT 48 YEARS
S/O K.G. GURAPPA GOWDA
JUNIOR ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE
BENGALURU-560 001
6. SRI. B. RAMESHA
AGED ABOUT 48 YEARS
S/O M. BANGARAPPA
JUNIOR ENGINEER
-
3
BRUHAT BANGALORE MAHANAGARA PALIKE
BANGALORE-560 001
...RESPONDENTS
(BY SRI. VIKAS RAJIPURA, AGA FOR R1;
SRI. H. DEVENDRAPPA, ADVOCATE FOR R2;
SRI. PRAKASH M. PATIL, ADVOCATE FOR R3 TO R6)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE PORTION OF THE
ORDER DATED 26.07.2016 PASSED BY THE LEARNED SINGLE
JUDGE IN WRIT PETITIONS No.12050-53/2013 & WRIT
PETITIONS No.12055-58/2013 ONLY SO FAR AS IT RELATES TO
DISMISSING OF WRIT PETITION CHALLENGE MADE TO SUB-RULE
(2) OF RULE 4 OF THE KARNATAKA MUNICIPAL CORPORATIONS
(ABSORPTION OF ASSISTANT ENGINEERS/JUNIOR ENGINEERS
APPOINTED ON DEPUTATION BASIS IN BRUHATH BANGALORE
MAHANAGARA PALIKE (SPECIAL) RULES 2011 AND ETC.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 22.11.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) This writ appeal is filed challenging the order dated 26.07.2016 passed by the learned Single Judge in W.Ps.No.12050-53/2013 (S-RES) and W.Ps.No.12055- 58/2013 (S-RES).
2. We have heard Shri. Ashok Haranahalli, learned Senior Counsel as instructed by Shri. R. Hemanth Raj,
-
4 learned counsel appearing for the appellants, Shri. Vikas Rajipura, learned Additional Government Advocate appearing for respondent No.1, Shri H. Devendrappa, learned counsel appearing for respondent No.2 and Shri. Prakash M. Patil, learned counsel appearing for respondents No.3 to 6.
3. Writ Petitions No.12050-53/2013 and Writ Petitions No.12055-58/2013 were filed challenging Rule 4 (i) and 4 (ii) of the Karnataka Municipal Corporations (Absorption of Assistant Engineers/Junior Engineers appointed on deputation basis in BBMP (Special) Rules, 2011 has been ultra vires and violative of Articles 14, 16(1) and 21 of the Constitution of India read with Section 421 of the Karnataka Municipal Corporation Act, 1976. A consequential direction was also sought to count the services of the petitioners from 23.07.1998 for seniority, fixation of pay, additional increments, Time-bound advancement and other benefits.
4. After hearing the parties, the learned Single Judge held that the Rules which takes away the benefit of
-
5 past service for pay protection is discriminatory since employees of the Karnataka State Construction Corporation (KSCC), who were sent on deputation to other organizations and whose services were absorbed in the said Government undertakings were granted the benefit of pay protection. However, insofar as denial of seniority was concerned no discriminatory treatment was found and the claim of the petitioners on that count was found against and the Writ Petitions challenge made to sub-rule (2) of Rule 4 insofar as it pertains to denial of seniority and other benefits on absorption was dismissed.
5. It is submitted by the learned senior counsel appearing for the appellants that appellants are the employees of KSCC, a Government of Karnataka undertaking, initially appointed on daily wage basis. They were later regularized as Assistant Engineers with effect from 23.07.1998. Subsequently, they were deputed to the second respondent, Bruhat Bengaluru Mahanagara Palike (BBMP), as Assistant Engineers with effect from 31.07.2007, and have been serving in the said capacity since then. The
-
6 appellants, along with other KSCC employees, filed Writ Petitions No.627-675/2002 before this Court, seeking absorption in other Government departments, as KSCC was incurring losses. In the said writ petitions, the State Government assured that the appellants would be considered for absorption in organizations such as the Bangalore Water Supply and Sewerage Board, Karnataka Police Housing Corporation, KUEF and other public entities.
6. It is submitted that the State Government failed to implement the earlier directions of this Court, compelling the appellants to file Writ Petitions No.1280-1286/2009 c/w W.Ps.No.2120-2127/2009 and 1825/2009 challenging KSCC's Circular dated 08.11.2008. The Circular proposed closing KSCC by 30.11.2008, retrenching employees under Section 25FFF of the Industrial Disputes Act, 1947, and introducing a Voluntary Retirement Scheme (VRS) from 15.12.2008 to 31.12.2008. The proposed retrenchment violated earlier assurances given in Writ Petitions No.627- 675/2002 that their services would be absorbed in departments such as Public Works or Irrigation. During
-
7 these proceedings, BBMP submitted that it was necessary to absorb the appellants in view of public interest. This Court, by its order dated 30.07.2009, directed the State Government to actively decide on absorbing the appellants within eight weeks, while recording the Government's assurance of favourable consideration.
7. It is further submitted that following the disposal of the aforementioned writ petition, multiple representations were made to the Chief Secretary and Principal Secretary, Government of Karnataka, seeking implementation of the order of the Court. Upon continued non-compliance of the Order of this Court, the appellants filed Contempt Petition No.111/2011 before this Court. During the contempt proceedings, the learned Government Advocate submitted the draft Rules for approval and assured compliance. The appellants submitted objections to the draft Rules on 01.06.2011. Despite this, the first respondent published the final Rules on 01.06.2011, and the second respondent passed a separate order on 07.02.2013 accepting these Rules. However, the Rules adversely affected the appellants
-
8 by fixing their pay at the minimum scale and excluding their prior service on deputation for purposes of pay, seniority and time-scale benefits.
8. It is submitted that aggrieved by these developments, the appellants challenged the impugned Rules. The learned Single Judge, while rightly declaring Rule 4(1) of the Absorption Rules unconstitutional to the extent it fixed pay at the minimum scale disregarding past service, dismissed the prayer regarding counting prior service for seniority. The appellants submit that the dismissal of their plea for seniority and related benefits fails to consider the assurances recorded in prior judicial proceedings, as well as the documents and submissions made before this Court. Furthermore, it is pertinent to note that KSCC has not been closed, contrary to the claims of the first respondent. The appellants therefore seek relief for the recognition of their prior service for all consequential benefits.
9. It is contended by the learned senior counsel appearing for the appellants that the learned Single Judge has erroneously concluded that the KSCC, the parental
-
9 department of the appellants, was closed prior to their absorption, leaving the appellants no option but termination by retrenchment or opting for voluntary retirement. This finding is factually incorrect, as KSCC continues to exist, with 113 employees still working in the Corporation. To substantiate this, the appellants submitted multiple documents before the learned Single Judge, including the list of employees as of 07.06.2016, proceedings of the Government dated 26.08.2014, an office order dated 30.06.2016, and a copy of the authorization. Despite these clear proofs of KSCC's continued existence, the learned Single Judge failed to consider them and erroneously concluded that KSCC had ceased to function, disregarding the appellants' plea for the revival of the Corporation.
10. It is further contended that the learned Single Judge has ignored the fact that the appellants never accepted the Circular dated 08.11.2008 issued by KSCC, which proposed their retrenchment. The appellants challenged this Circular in Writ Petitions No.1280- 1286/2009, requesting absorption in another Government
-
10 Department in line with assurances given by the State in earlier proceedings in Writ Petitions No.627-676/2002. In the earlier writ, the State had undertaken to consider the appellants' absorption similarly to employees deputed to organizations like the Bangalore Water Supply and Sewerage Board and the Karnataka Police Housing Corporation. The appellants were ultimately absorbed in the second respondent-BBMP under the directions of this Court and not under the impugned Circular, contrary to the observations of the learned Single Judge. Thus, the appellants are to be regarded as absorbed employees under judicial directions and not retrenched employees as wrongly held.
11. It is also contended that the learned Single Judge has misinterpreted the term "absorb" in the context of service jurisprudence. Absorption involves transferring an employee from one department to another, wherein the employee loses their lien on the original post and is permanently integrated into the new post without a break in service. The appellants' absorption was effected in public interest, as indicated in the second respondent's letter dated
-
11 01.12.2008 (Annexure-R). Furthermore, the Government had ordered as early as on 12.05.2000 that deputationist should be permanently absorbed in BBMP. The appellants had approached this Court in Writ Petitions No.627- 675/2002, where the State had assured them of absorption. Despite these facts, the learned Single Judge failed to appreciate the delays and lapses on the part of the Government and BBMP in finalizing the appellants' absorption, a process that took over 12 years.
12. The learned Single Judge also failed to recognize the appellants' entitlement to seniority from the date of their regularization, as per the Karnataka Municipal Act, 1964, the Rules framed there under and the Karnataka Government Servants (Seniority) Rules, 1957. The dismissal of the appellants' plea for counting past seniority relied solely on the impugned Rules, ignoring statutory provisions and prior assurances. Additionally, the respondents had not raised objections concerning seniority in their statements and yet the learned Single Judge rejected the appellants' prayer for counting their past service.
-
12
13. In support of the contentions, the learned counsel placed reliance on the following decisions:-
• The State of Karnataka v. T. N. surappa, by Order dated 29.11.2001 passed in W.P.No.23793/2001 (S-KAT);
• Dr. Rammohan Rao S. and Another v. State and Others, reported in 1989 KSLJ 1313;
• S.I. Rooplal and Another v. Lt. Governor through Chief Secretary, Delhi and Others, reported in AIR 2000 SC 594;
• K. Anjaiah and Others v. K. Chandraiah and Others, reported in AIR 1998 SC 1202;
• Raghu S. and Others v. The State of Karnataka and Another, by Order dated 26.05.2022 passed in W.P.No.10019 of 2021 (S-RES);
• K. Madhavan and Another v. Union of India and Others, reported in AIR 1987 SC 2291 and • R. Manjunath and Others v. State of Karnataka and Others, reported in 2012 (5) KCCR 3657.
14. It is contended by the learned Additional Government Advocate appearing for respondent No.1 that the appellants were initially employed on a daily wage basis in the KSCC and were regularized as Assistant Engineers or Junior Engineers effective from 23.07.1998. However, their regularization did not include pay scales or benefits
-
13 equivalent to those of regular employees in other Government Departments, such as pensions. Due to financial losses in KSCC, their services were deputed to BBMP on 31.07.2007, under Government decision to safeguard their interests. Subsequently, they were absorbed in Bruhat Bengaluru Mahanagara Palike (Special) Rules, 2007 (for short "Rules, 2007").
15. It is further contended that the appellants challenged the Rules, 2007 in WPs No.12050-53/2013 and 12055-58/2013, seeking to have them declared ultra-virus. On 07.07.2016, the learned Single Judge by partly allowing the writ petitions, declared Rule 4(i) of Rules, 2007 as unconstitutional and upheld the denial of seniority in Rule 4(ii) of Rules, 2007 and held that their prior service in KSCC could not be counted for seniority or pay benefits. Aggrieved by the order of the learned Single Judge, appellants filed the present writ appeal and challenged the portions of the order denying them seniority and other benefits.
16. The decision of the learned Single Judge, clarified that the appellants' absorption in BBMP amounted to a fresh
-
14 appointment. Their service in KSCC was governed by Labour Laws, while their tenure in BBMP was subject to the Karnataka Civil Services Rules (KCSR). Consequently, their absorption was conditional and previous service in KSCC could not be considered for seniority or pay purposes. This interpretation was supported by the decision of the Apex Court in the case of Mrigank Johri & Ors. v. Union of India & Ors., reported in (2017) 8 SCC 256.
17. It is contended that the learned Single Judge further held that the appellants' deputation period from 31.07.2007 to 31.10.2011, when the absorption Rules took effect, could be counted only for leave and pension purposes but not for pay or seniority. This distinction was upheld by the Division Bench of this Court in the case of Raghu.S and others v. The State of Karnataka and another by order dated 26.05.2022 passed in W.P.No.10019/2021. Thus, their claims for seniority and associated benefits based on past service were deemed inadmissible. Further, it is contended by the learned AGA that if the contention of the appellants that they are entitled to seniority from their initial
-
15 appointment has to be considered by this Court, all persons who are liable to be affected by such order were to be made parties to these proceedings. The decision of the Apex Court in Ajay Kumar Shukla and others v. Arvind Rai and Others reported in (2022) 12 SCC 579 is relied on in support of this contention. It is submitted that the writ petition filed without impleading any of the seniors even in a representative capacity was liable to be rejected on that ground alone.
18. We have considered the contentions advanced. It is clear that, the appellants were the employees of KSCC. A situation had arisen where the Corporation faced an imminent threat of closure w.e.f. 30.09.2008. The employees were given the option of retrenchment in terms of Section 25FFF of the Industrial Disputes Act, 1947, or voluntary retirement under the VRS Scheme which would be in force from 15.12.2008 to 31.12.2008. The appellants approached this Court filing W.Ps.No.1280-286/2009. The BBMP., where the appellants were working on deputation had appeared in the Writ Petitions and had submitted that
-
16 there is no provision for absorption of the Writ Petitioners in the BBMP. However, it was agreed that if the Government takes a decision for absorption, the BBMP would comply with the same.
19. The learned Additional Government Advocate also submitted that the Government is actively considering the question of absorption of the appellants in the BBMP. Pursuant thereto, draft regulations were issued and objections were called for. After considering the objections as well, the appellants' services were absorbed on the specific condition that they would be treated as fresh entrance and would not be entitled either to pay protection or to seniority.
20. It is evident from a reading of the Notification at Annexure 'A' that the Rules are made in relaxation of the normal rules of appointment and the provisions of the Karnataka Municipal Corporations (Absorption of Assistant Engineers/Junior Engineers appointed on deputation basis in BBMP (Special) Rules, 2011. The appellants accepted the said Rules and were absorbed subject to the specific
-
17 condition that they would not be entitled to seniority. There is nothing on record to show that they had submitted any objections to the draft Rules. The learned Single Judge specifically considered the claim of the petitioners and the decisions relied on by them and found that there is no discrimination meted out to the petitioners and that they had been absorbed in the BBMP in relaxation of the Rules regarding appointment and on the specific conditions as provided in the rules. The contention of the appellants that the KSCC has not been closed down also will have absolutely no relevance since they themselves had approached this Court in the earlier round of Writ Petitions seeking their absorption into Government service and had specifically accepted the offer of the BBMP to absorb them in its service subject to the rules be framed by the Government.
21. In the above factual circumstances, we are of the opinion that the contentions raised by the appellants cannot be accepted. The Apex Court in Mrigank Johri's case (supra), had held that though benefit of past service rendered in a cadre is usually reckoned for purposes of
-
18 seniority but in cases where conditions of absorption were categoric in stating that absorbees would be "deemed to be new recruits" and previous service would be counted for all purposes except seniority in the cadre and the appellants had accepted it without demur, seniority cannot be claimed with effect from a date prior to recruitment. The decision of the Apex Court in Ajay Kumar Shukla's case (supra), relied on by the learned counsel appearing for the BBMP and the Government in Authority that a claim for seniority cannot be raised without the persons likely to be affected as the party arrayed.
22. In the above circumstances, we are of the opinion that the contentions raised by the appellants are without merit and do not require to be considered. The appeal therefore fails and the same is accordingly dismissed.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(UMESH M ADIGA) JUDGE cp*