Karnataka High Court
S.P.Shivarudra Shekharayya vs The State Of Karnataka And Ors on 6 August, 2024
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NC: 2024:KHC-K:5853
WP No. 205741 of 2014
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 205741 OF 2014 (S-RES)
BETWEEN:
S.P.SHIVARUDRA SHEKHARAYYA
S/O S.J.MALLIKARJUNAYYA,
AGE 42 YEARS,
OCC : WORK INSPECTOR,
BELLARY URBAN DEVELOPMENT AUTHORITY,
BELLARY-583 101.
R/O : SUDARSHAN REDDY
PROFESSIONAL COURIER,
ADARSH COLONY,
SINDHANOOR,
DIST : RAICHUR
..PETITIONER
(BY SRI.P. VILAS KUMAR, SENIOR COUNSEL FOR
SRI. NITESH PADIYAL, ADVOCATE)
Digitally signed AND:
by SUMITRA
SHERIGAR 1. THE STATE OF KARNATAKA
Location: HIGH THROUGH ITS PRINCIPAL SECRETARY,
COURT OF
KARNATAKA MINISTRY OF URBAN DEVELOPMENT,
VIKAS SOUDHA,
DR.AMBEDKAR VEEDHI,
BANGALORE.560001.
2. THE SECRETARY TO THE GOVT.
OF KARNATAKA FOR THE IMPLEMENTATION
OF ARTICLE 371 (J), DEPARTMENT
OF PERSONNEL AND ADMINISTRATIVE REFORMS,
1ST FLOOR, M.S.BUILDING,
DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001.
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NC: 2024:KHC-K:5853
WP No. 205741 of 2014
3. THE REGIONAL COMMISSIONER
MINI VIDHAN SOUDHA,
MAIN ROAD,
GULBARGA.585101.
4. THE BELLARY URBAN DEVELOPMENT AUTHORITY
THROUGH ITS COMMISSIONER,
BELLARY.583101.
...RESPONDENTS
(BY SMT. ARATI PATIL, HCGP FOR R-1 TO R-3;
SRI. SHIVAKUMAR MALIPATIL, ADVOCATE FOR R-4)
***
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI FOR SETTING ASIDE THE ENDORSEMENT ISSUED BY THE RESPONDENT NO.1 VIDE No.Na.A.E.115-BEN.Ru.Pra.2013 DATED 01.09.2014 WHICH IS AT ANNEXURE- A, IN SO FAR AS EXCLUDING THE NAME OF PETITIONER FROM RECOMMENDATION MADE FROM THE RESPONDENT NO.4 IN SO FAR AS EXTENDING THE BENEFIT OF ACT NO.77 DATED 15.2.2013 IN SO FAR AS PETITIONER IS CONCERNED, WITH ALL CONSEQUENTIAL BENEFITS IN THE INTEREST OF JUSTICE; AND ISSUE ANY OTHER WRIT OR DIRECTION ORDER AS DEEMED FIT BY THE COURT.
THIS WRIT PETITION, HAVING BEEN RESERVED AT KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT BEFORE THE PRINCIPAL BENCH AT BENGALURU THROUGH VIDEO CONFERENCE, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE LALITHA KANNEGANTI CAV ORDER (PER: HON'BLE MR. JUSTICE LALITHA KANNEGANTI) The writ petition is filed seeking the following prayer:
i) Issue a Writ of Certiorari for setting aside the endorsement issued by the Respondent No.1 vide -3- NC: 2024:KHC-K:5853 WP No. 205741 of 2014 No.Na.A.E.115.Ban.Ru.Pra.2013 dated 01.09.2014 which is at Annexure A in so far as excluding the name of petitioner from recommendation made from the respondent No.4 in so far as extending the benefit of Act No.77 dated 15.2.2013 in so far as petitioner is concerned, with all consequential benefits in the interest of justice.
ii) Issue any other writ or direction order as deemed fit by the Hon'ble Court.
2. It is the case of the petitioner that he was appointed as a Literate Assistant under respondent No.1 - Urban Development Department in the year 1996 and in the year 2003 taking into consideration his excellent work, he was allotted the job of Work Inspector/Building Inspector. The Government of Karnataka enacted Act No.77 on 15.02.2013, extending the benefit under Article 371(J) of the Constitution of India. In view of Article 371(J) of the Constitution of India, all the six Districts of the Hyderabad-Karnataka region are being treated as one unit and the rights, privileges etc. in respect of all the six Districts are treated alike. It is stated that the employees of the Urban Development Authorities in respect of all the six Districts could be transferred inter se by the respondent No.3- Regional Commissioner. The respondent No.4 -4- NC: 2024:KHC-K:5853 WP No. 205741 of 2014
- Bellary Urban Development Authority (BUDA), during the year 1996, did not have the Cadre and Recruitment Rules of its own and they have been following the Government Orders/Notifications as and when issued by the respondent No.1.
3. It is further submitted that the petitioner was eligible to be appointed as a Literate Assistant as he had passed SSLC from a neighbouring village of Bellary District and thereafter he had successfully appeared for the Pre-University Course in the year 1991-92 at Bellary. The qualification that was required for the post of Literate Assistant was SSLC. As there was requirement of Literate Assistant in the 4th respondent - BUDA, the petitioner approached the fourth respondent and he was appointed on Daily Wages exclusively on merits as there was no other person prepared to work for a meagre salary, but the petitioner agreed due to poverty. He continued to work with the 4th respondent - BUDA without any break. In the year 2003, considering his excellent track record, he was made to work as Work Inspector/Building Inspector, however, on daily wages. Then, at that time, Act No.77 dated 15.02.2013 came -5- NC: 2024:KHC-K:5853 WP No. 205741 of 2014 into force, by virtue of which, all the daily wage employees working under the control and supervision of Government of Karnataka working in various Departments and Public Sectors were ordered to be regularised and ordered to be given the benefit as per the said Act and all the employees who have put in more than ten years of service were entitled to the benefit under the said Act. The petitioner's name was recommended by the respondent No.4 by Notification dated 01.07.2013. His name appeared on Page No.2 at Sl.No.3 in respect of communication by respondent No.4 dated 01.07.2013 sent to respondent No.1. Thereafter, the impugned endorsement was issued by respondent No.1 dated 01.09.2014 to the effect that, since the petitioner had completed SSLC in Telugu Medium, his name was excluded/dropped by issuing a Government Notification dated 15.02.2014. Aggrieved thereby, the petitioner is before this Court.
4. Learned Senior Counsel appearing for the petitioner submits that the endorsement issued by the respondent No.1 is illegal and contrary to the law laid down by the Hon'ble Apex Court and also contrary to the well settled principles of law. It -6- NC: 2024:KHC-K:5853 WP No. 205741 of 2014 is submitted that the completion of SSLC is a qualification prescribed and it does not mean that one should have completed SSLC in Kannada medium only. He submits that the petitioner had an un-blemished track record of more than 18 years and therefore, he is entitled for the benefit of Act No.77 dated 15.02.2013. It is submitted that, at the time of entry into service of the petitioner way back in the year 1996, there was no rule or law that he should have passed SSLC in Kannada medium only. It is submitted that when a person completes nearly two decades of service, without any blemish, it pre- supposes that he had clear knowledge of Kannada language and discharge the duties to the fullest satisfaction of the fourth respondent - BUDA. Even otherwise also, passing of Kannada Language is optional and not compulsory or mandatory. It is submitted that when a person falls under Article 371(J) of the Constitution of India and has acquired the required qualification and completed nearly two decades of service, the benefit of Article 371(J) of the Constitution of India cannot be deprived only on the basis that he has not passed SSLC in Kannada medium. It is further submitted that the petitioner's entry into service is by way of due process. Even the Departmental Heads -7- NC: 2024:KHC-K:5853 WP No. 205741 of 2014 are empowered to exempt the officials from passing the Kannada Language Examination as the same is only directory in nature and not mandatory. He submits that not considering the case of the petitioner amounts to discrimination among the similarly situated employees who have been extended the benefit of Act No.77 dated 15.02.2013. Being a permanent resident of Hyderabad-Karnataka region, the petitioner is entitled to the benefit under Article 371(J) of the Constitution of India.
5. Learned Senior Counsel appearing for the petitioner had relied on the judgment of the Hon'ble Apex Court in the case of SHEO NARAIN NAGAR AND OTHERS VS. STATE OF UTTAR PRADESH AND ANOTHER1 and draw the attention of the Court to paragraph 9, which reads as below:
"9. The High Court dismissed the writ application relying on the decision in Uma Devi (AIR 2006 SUPREME COURT 1806) (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to 1 (2018) 13 Supreme Court Cases 432 -8- NC: 2024:KHC-K:5853 WP No. 205741 of 2014 be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002.
The appellants were required to be appointed on regular basis as a one-time measure, as laid down in para 53 of Uma Devi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect from 2.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today."
6. Learned Senior Counsel appearing for the petitioner also relied upon another judgment of the Hon'ble Apex Court in the case of Nihal Singh & Others Vs. State of Punjab & Others in Civil Appeal No.1059 of 2005, dated 07.08.2013, wherein paragraph 21 reads as below:
"21. But we do not see any justification for the State to take a defence that after permitting the utilization of the services of large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need."-9-
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7. Learned Senior Counsel appearing for the petitioner also relied on a decision of the learned Single Judge of this Court in the case of Smt. Shankremma and another Vs. The Agriculture Officer and another arising out of W.P.Nos.83563-83564/2012 (S-REG) decided on 06.03.2020 and draw the attention of this Court to paragraph
(e), which reads as under:
"(e) Ordinarily a writ Court does not itself direct the regularization of services of the employees, the right course being a direction being issued to the concerned to consider the claim for regularization; however, case of the petitioners is an exception that compels this Court has to deviate from the traditional approach inasmuch as, petitioners were before this Court twice as already mentioned above, they were made to fight a legal battles before the labour Court and before the authority even for payment of their minimum wages, of course successfully; the text of the impugned order, the contention in the Statement of Objection and the submission of the learned AGA warrant this Court to issue a writ of mandamus to the respondents to regularize services of the petitioners."
8. Learned Senior Counsel also relied on the decision of a co-ordinate bench of this Court in the case of S.S. Anand and Others Vs. The Management of Mahatma Gandhi Vidya
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NC: 2024:KHC-K:5853 WP No. 205741 of 2014 Peeta (Regd.), Bangalore and Another arising out of Writ Petition Nos.20612-650/1997, decided on 27.01.1998, and submits that the impugned endorsement is liable to be set aside and the case of the petitioner for regularization has to be considered.
9. On behalf of the fourth respondent - BUDA, Statement of Objections are filed. In the said Objections Statement, it is stated that the Cadre and Recruitment Rules of the Urban Development Authority were framed in the year 2003. It is stated that the petitioner was taken temporarily as a daily wage worker to work as a work charged establishment worker to assist the on-going works of BUDA temporarily. He was continued as Gardener (Maali). It is evident from the resolution of the meeting dated 05.10.1999. It speaks about the proposal sent to the Government, recommending the name of the petitioner for appointment as a Maali. But the said resolution sent to the Government was not approved. Since the respondent No.4 - BUDA was taking up developmental works one after the other, the petitioner has been taken in various capacities, however, most of which were menial in nature. They did not require any additional qualification and the
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NC: 2024:KHC-K:5853 WP No. 205741 of 2014 petitioner has been working as such on daily wages as temporary employee. He was not appointed against the vacant permanent post. He has not gone through any recruitment process as required under the law and has not passed the requisite educational qualification for the post of Literate Assistant or any other post of the respondent No.4- BUDA.
10. It is stated that, as per the Cadre and Recruitment Rules of BUDA, the minimum educational qualification for the post of peon, watchman and Maali is VIII Standard in Kannada, whereas the petitioner has not studied even a single year in Kannada language. It is also stated that there is no post like Literate Assistant under the Cadre and Recruitment Rules of the fourth respondent - BUDA which was framed in the year 2003 and it is not a sanctioned post. They have also denied the fact that in the year 2003, the petitioner was made as Work Inspector. It is also stated that as per the Government Notification dated 15.02.2013 and the Rules framed during the year 2013, the daily wage employees who have put in more than ten years of service were to be regularized as per the terms and conditions mentioned in those rules. As the petitioner being a daily wage employee did not fulfill the
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NC: 2024:KHC-K:5853 WP No. 205741 of 2014 conditions and the requirements under the said Notification with regard to the qualification of SSLC in Kannada medium, as such, is not entitled for regularization and is ineligible.
11. It is further stated that the recommendation sent by the respondent No.4 - BUDA to respondent No.1 is by mistake and the respondent No.1 has rightly not considered and approved the name of the petitioner as he was ineligible. It is further stated that as per the Cadre and Recruitment Rules of the BUDA, the minimum educational qualification is VII Standard Kannada for Drivers and VIII standard for the post of Peon, Watchman and Maali and X Standard Kannada for other Group 'C' employees.
12. The contention of the petitioner that he has an un- blemished track record is also denied by the respondents as they have not maintained any service record for the petitioner, as he was working only as a temporary employee. As per Rule 3 of the Notification dated 15.02.2013, possession of requisite qualification is a mandatory requirement and that the said Rule clearly stipulates that the daily wage worker shall be eligible from the date of his appointment as a daily wage worker, if
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NC: 2024:KHC-K:5853 WP No. 205741 of 2014 not, he shall not be regularized. As the petitioner did not fulfill the required qualification, he is not entitled for regularization. It is further stated that the petitioner is not governed under Article 371(J) of the Constitution of India as per the Karnataka Public Employment (Reservation in Appointment for H-K Area) Order, 2013. The candidates should have studied in Educational Institutions in such local area for a period not less than ten consecutive academic years, whereas the petitioner has studied outside Hyderabad - Karnataka region and has passed SSLC in Telugu language and not in Kannada, which is mandatory for claiming the regularization of his service. Even for the regular Government employees, passing of Kannada Language Examination is mandatory in addition to possessing the Educational qualification. It is stated that there is no discrimination of any kind by respondent No.4 against the petitioner. As he is ineligible for regularization under Article 371(J) of the Constitution of India, the impugned endorsement has been issued and there is no violation of any fundamental rights of the petitioner. Learned counsel reiterating the stand taken in the Statement of Objections submits that the impugned endorsement is issued as the petitioner is not eligible
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NC: 2024:KHC-K:5853 WP No. 205741 of 2014 and the same is perfectly legal and valid and no grounds are made out seeking interference of this Court.
13. A counter affidavit has been filed on behalf of the respondent No.4 stating that the petitioner is not working with respondent No.4 - BUDA and that he has left the services of the said respondent more than two years ago. It is stated that the proposal sent by them to the Government was not approved by the Government and the same was communicated to the petitioner which he has acknowledged. It is stated that the endorsement was rightly given by the respondent No.1.
14. Having heard the learned Senior Counsel for the petitioner, learned High Court Government Pleader for the respondent Nos.1 to 3 and the learned counsel for respondent No.4 - BUDA, this Court has perused the material on record. There is no dispute about the fact that the petitioner was working with the respondent as a daily wage employee. Initially, there were no rules for the BUDA. The rules were framed in the year 2003. In the earlier proposal that is sent to the government, the name of the petitioner finds place. The qualification for a post of peon, watchman and malies is 8th
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NC: 2024:KHC-K:5853 WP No. 205741 of 2014 Standard Kannada. The day when he started working with them, there were no rules, as such, it cannot be said that against a particular cadre or a sanctioned post, he was taken into service. As per the Government notification dated 15.02.2013 and the rules framed during the year 2013, the daily wage employees who have completed more than ten years of service were to be remunerated as per the terms and conditions mentioned in those rules. As per rule 3 of the notification dated 15.02.2013, possessing requisite qualification for a post of peon, watchman and malies is 8th Standard Kannada. In this case, it is an admitted fact that the petitioner has not fulfilled the said qualification and his case was rejected.
15. As per the counter filed by the respondent, the petitioner had left the job about two years back and he is no more working with the respondent. The contention of the learned senior counsel that, as he was working right from the beginning continuously and his services are utilized for more than 10 years, when Kannada or Telugu was not the problem then, it cannot be a problem now, has no legs to stand. When the respondents have issued or framed their own rules and regulations for the appointment and as a matter of fact, nobody
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NC: 2024:KHC-K:5853 WP No. 205741 of 2014 can seek the regularization unless and until he qualifies the eligibility criteria.
16. Considering the fact that the petitioner is not fulfilling the eligibility criteria, however long the service of the petitioner is, when it comes to regularisation, the petitioner has to fulfill the requisite qualification as per the relevant rules. In addition to that, petitioner is not working with the respondent from the last two years. In the considered opinion of this Court, the respondents have rightly rejected the case and this Court finds no reasons to interfere.
Accordingly, the writ petition is dismissed.
Sd/-
JUSTICE LALITHA KANNEGANTI BMV*/MEG