Karnataka High Court
Sri.H.S.Raghavendra vs The State Of Karnataka on 9 June, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.24055 OF 2014 (S-PRO)
BETWEEN:
SRI. H.S. RAGHAVENDRA,
S/O H.K. SUBHASCHANDRA BHOSE,
AGED ABOUT 57 YEARS,
R/AT NO.188, ALASINGARA BEEDI,
NEAR CHICKPET, TUMKUR CITY,
TUMKUR - 572 101.
...PETITIONER
(BY SRI. M.R. RAJAGOPAL, SENIOR COUNSEL FOR
SRI. H.N.BASAVARAJU, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
2. THE COMMISSIONER
TUMKUR URBAN DEVELOPMENT
AUTHORITY, BELAGUMBA ROAD,
TUMKUR CITY,
TUMKUR.
....RESPONDENTS
(BY SRI. M.S. NAGARAJA, AGA FOR R1;
SRI. T.P. VIVEKANANDA, ADVOCATE FOR R2)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ENDORSEMENT OF THE 2ND RESPONDENT DATED
29.04.2014 AS PER ANNEXURE-V AND ALSO THE COMMUNICATION OF
THE 1ST RESPONDENT DATED 09.07.2013 AS PER ANNEXURE-V1 AND
ETC. .
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner is challenging Endorsement dated 29.04.2014 (Annexure-V) and communication dated 09.07.2013, (Annexure- V1) issued by the respondents herein.
2. It is the case of the petitioner that, the petitioner was appointed temporarily on daily wage basis as a Typist with the then City Improvement Trust Board, Tumakuru as per letter dated 28.02.1986 (Annexure-A). It is the case of the petitioner that, the petitioner has approached the respondent-authorities for regularisation of his service, on the ground that the petitioner has been working against the Sanctioned Post. Therefore, it is the contention of the petitioner that, the petitioner fulfills the conditions stipulated in the case of Secretary, State of 3 Karnataka V. Umadevi and Ors reported in (2006) 4 SCC 1 and accordingly, sough for quashing of impugned orders.
3. I have heard M.R.Rajgopal, learned Senior Counsel appearing on behalf of Sri H.N.Basavaraju for the petitioner, Sri M.S.Nagaraja, learned Additional Government Advocate appearing for the respondent-State and Sri T.P.Vivekananda, learned counsel appearing for the respondent No.2.
4. Sri M.R.Rajgopal, learned Senior Counsel for the petitioner invited the attention of the Court to Government order dated 03.04.1986, wherein, sanction of time scale of pay to the employees working on daily wages in the local bodies have been considered and the pay and allowances in respect of the regular employees has been extended to the employees of the local body. He further invited the attention of the court to the fact that the petitioner was working with the 2nd respondent since 1986 and the petitioner, though appointed on daily wages, has been granted wages as per Annexure-H, and the case of the petitioner has been considered as per letter dated 25.05.1995 (Annexure-M) as there was need for such appointment by the 4 2nd respondent. Sri M.R.Rajgopal, learned Senior Counsel further contended that, as per Official Memorandum dated 09.01.2003 by the respondent No.2, (Annexure-P), case of the petitioner has been considered for promotion/absorption and therefore, he contended that the impugned orders passed by the respondent- authorities requires to be set aside. To buttress in his contentions, learned Senior Counsel places reliance on the judgment of this court in the case of Amarkant Rai Vs. State of Bihar and others reported in (2015) 8 SCC 265 and in the case of Nihal Singh and others vs. State of Punjab and others reported in (2013) 14 SCC 65.
5. Per contra, Sri M.S.Nagaraj, learned Additional Government Advocate appearing for the respondent-State submitted that as the petitioner has not complied with the conditions stipulated by the Hon'ble Apex Court in the case of Umadevi (supra) and further the petitioner has attained age of superannuation and therefore, considering the case of the petitioner for regularisation does not arise. 5
7. Sri T.P.Vivekananda, learned counsel appearing for the 2nd respondent, argued that, the petitioner has not been appointed as against the sanctioned post, and the appointment is only a temporary in nature by the then City Improvement Trust Board. He invited the attention of the Court to Section 51 and 52 of the Karnataka Urban Development Authorities Act, 1987 (for short, hereinafter referred as Act) and submitted that unless the Regulation under Section 72(1) (f) of the Act, is framed by the Government, all appointments to the authorities under the Act, shall be made by the State Government alone and 2nd respondent is not the competent authority to appoint any such person unless, same is accorded and thereafter, approved by the State Government. Accordingly, Sri T.P.Vivekananda, learned counsel argued that, as the cadre and Recruitment Rules of the 2nd respondent has not been approved by the Government, the petitioner is entitled for the benefits under the provisions of Daily Wage Employees Welfare Act, 2012. He further submitted that the petitioner has retired from service on 31.12.2006 and accordingly, he sought for dismissal of the writ petition.
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8. In the light of the submission made by the learned counsel appearing for the parties, the core question to be answered in this writ petition is, whether the appointment of the petitioner to the post of Typist is as against the sanctioned post or not. In this regard, on careful consideration of the writ papers would indicate that, petitioner has been appointed to the post of Typist on temporary basis and appointment of the petitioner was accepted by the 2nd respondent as per Annexure- C. The service of the petitioner has been considered for revision of pay by the respondent-authorities as per order dated 25.05.1995, (Annexure-M), and further 2nd respondent has extended the benefits to the petitioner. It is the case of the learned Senior counsel appearing for the petitioner that the 2nd respondent was in need of the service of the petitioner and accordingly, the service was extended for a considerable period and therefore, as the petitioner has been appointed as against the sanctioned post, the petitioner is entitled for regularisation. In this regard, I have carefully examined the four conditions to be fulfilled by the applicants seeking for regularisation in terms of paragraph 53 of the Umadevi's case (supra). In the backdrop 7 of the law declared by the Constitution Bench in the case of Umadevi, I have carefully examined the judgment referred to by the petitioner in Amarkant Rai (supra). Perusal of paragraph 13 of the above judgment makes it clear that, the appellant in the said case was working against the unsanctioned post and thereafter, by order dated 03.01.2002, appointed the appellant against the sanctioned post. However, in the present case, the petitioner was not appointed as against the sanctioned post and that apart, in the event if the petitioner to be appointed as against the sanctioned post, the Government is the competent appointing Authority as per Section 51 and 52 of the Act, and therefore, the aforementioned judgment and facts are not applicable to the case on hand. The,refore I do not find any acceptable ground to interfere with the impugned orders passed by the respondent-authorities. In this regard, this Court, in the case of B.K. ANNAPPA vs. THE URBAN DEVELOPMENT AUTHORITY, HASSAN AND OTHERS reported in ILR 1999 KAR 1147, had an occasion to deal with Section 52 of the Act. Paragraph 22 to 25 reads as under:
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"22. From the above provisions, it is clear that the Authority cannot undertake any development scheme without seeking the previous approval of the Government. From the said provision, it also manifests that the Government's approval is required also for incurring the expenditure for execution of said development scheme which will also include the expenditure against employment of manpower by way of daily wages or contract basis restricting its tenure till completion, of the scheme. Therefore, the Commissioner is wrong in assuming that he or the Authority can make temporary or daily wages appointments under the guise of undertaking developmental schemes.
23. Keeping in view the facts as noticed above that the none of the Authorities constituted under the Act, being 22 in number, have statutory service regulations in terms of Section 72 of the Act, I feel that it is hightime when the Government should be set down with judicial fiat to expedite the grant of approval to the Regulations which have already been sent to it atleast by 16 Authorities. So far as the remaining 6 Authorities are concerned, the Government should issue immediate directions to them in terms of Section 65 of the Act for forwarding its draft regulations for its approval.
24. In so far as the reliefs claimed by the petitioners' are concerned, the same cannot be granted in view of the law laid down by the Supreme Court in the case State of Himachal Pradesh v. Suresh Kumar Verma, wherein it has been held that.
"The vacancies require to be filled up in accordance with the rules and all the candidates who would otherwise be eligible are entitled to apply for when recruitment is made and seek consideration of their claims on merit according to the Rules for direct recruitment along with all the eligible candidates. The appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and 9 corruption. It is equally settled law that even for Class IV employees recruitment according to rules is a pre-condition."
25. Keeping in mind the facts, the statutory provisions and the law laid down by the Supreme Court as noticed above, it is held that the petitioner is not entitled to any relief as claimed. But at the same time, it is further held and directed that.-
(i) No Urban Development Authority constituted under the Act or its Commissioner or any other office bearer is entitled to give appointments either on daily or contract or temporary or permanent basis to any person as officer or servant of the Authority except under and in accordance with Sections 51 and 52 of the Act:
(ii) the State Government should complete the process of granting approval and its publication in the official gazette of the regulations in terms of Section 72 of the Act in respect of every Urban Development Authority within Four months from today.
9. Following the law declared by this Court and applying to the principle to the case on hand, as the 2nd respondent is incompetent authority for making any appointment and undisputedly the petitioner has not been appointed as against the sanctioned post, I am of the view that, the writ petition is liable to be rejected. In the result, writ petition is dismissed.
SD/-
JUDGE SB