Karnataka High Court
The State Of Karnataka By Its Secy To Govt vs C B Vedavathi D/O Basavaiah on 26 August, 2013
Author: N Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 26th day of August, 2013
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE V SURI APPA RAO
W.P.No.22373 of 2004 (S-KAT)
BETWEEN:
1. The State of Karnataka
By its Secretary to Govt.,
Forest and Environment Department
M. S. Building
Bangalore
2. The Principal Chief Conservator of
Forest, Aranya Bhavan
Malleshwaram
Bangalore - 560 003
3. The Conservator of Forests
Shimoga Circle
Shimoga
4. The Deputy Conservator of
Forests, Chickmagalur Division
Chickmagalur
2
5. The Deputy Commissioner
Chickmagalur Division
Chickmagalur - 57 ...Petitioners
(By Smt. Susheela, AGA)
AND:
1. C.B. Vedavathi
Aged about 39 years
D/o Basavaiah
Working as Typist/Literate
Assistant
Office of the
Deputy Conservator of Forests
Chickmagalur Division
Chickmagalur
2. B. K. Nagaraju
Assistant Conservator
of Forests
Watershed Development Department
Bagalkot
Bagalkot District ...Respondents
(By Sri M. Ajay Kumar and Nanjunda Swamy, Advocate for
R1; Sri Rathnagiri Swaminathan, Advocate for R2)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to set aside the order
dated 25-09-2002 passed by the Tribunal in Application
No.3635 of 1999 vide Annexure-A.
This Writ Petition coming on for hearing this day,
N. KUMAR J., made the following:
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ORDER
The State has preferred this writ petition challenging the order passed by the Tribunal directing the respondents to regularize the service of the 1st respondent and to extend to her all consequential benefits with effect from the date of regularization and to pay all arrears of wages with interest.
2. For the purpose of convenience, the parties would be referred to as they are referred to in the application No.3635/1999.
3. The case of the applicant is that she has passed SSLC Examination. She has also passed Senior English and Kannada Typing Examination conducted by the Karnataka Secondary Education Board. She was initially appointed as a Literate Assistant on daily wages on 10.08.1982 in the Office of Range Forest Officer, Dandeli Range, Maliyal, where she worked as such from 10.06.1982 to 10.05.1984. Again she was appointed as a Literate Assistant on daily wages from 4 14.05.1984 in the Office of the Range Forest Officer, Manchikere Range, Yellapur Division, where she worked from 14.05.1984 to 11.05.1987. She was again appointed as Literate Assistant on daily wages in the Office of the Range Forest Officer, Sreenivasapur in Kolar District, where she worked from 14.08.1987 to 31.03.1988. Certificates are produced showing that she has worked during the said periods, by Sri.B.K.Nagaraju, Range Forest Officer, who was Range Forest Officer of Manchikere Range, Yellapura Division. She was again appointed as a Literate Assistant- cum-typist on consolidated salary in the Office of the Range Forest Officer, Hebba Range, Sangameswarapet, with effect from 01.04.1988. The said appointment was made by the 4th respondent - Deputy Conservator of Forests against the sanctioned post. She worked in the said Office from 01.04.1988 to 31.05.1989. The Hebbe Range Officer, on instructions of the 4th respondent removed her from service as Literate Assistant-cum-Typist from 01.08.1989 as per the instructions of the Deputy Conservator of Forests by Communication dated 01.06.1989. The same was challenged 5 by the applicant before the Tribunal in Application No.867/1990. The said order was set-aside by the Tribunal by its order dated 02.12.1992 directing reinstatement in service. Thereafter, she submitted a duty report on 04.12.1992, but she was not taken to duty. She filed a contempt petition before the Tribunal. When notice was served on the authorities, by order dated 18.04.1993 she was reinstated into service as Literate Assistant-cum-typist on daily wages. Accordingly, she reported to duty on 26.04.1993.
4. The State Government, in view of the judgment of the Apex Court in The Dharwad District Public Works Department Literate Daily Wages Employees Association V/s. State of Karnataka reported in AIR 1990 SC 883 framed a scheme providing for regularization of daily wages employees by its order dated 06.08.1990. The said order provided for regularization of all daily rated employees appointed on or before 01.07.1984, who were in service as on 06.08.1990 and who have completed 10 years of service 6 by working for not less than 240 days in each of the consecutive block periods of 12 months. She satisfied all the conditions laid down in the said Government order. She has been in continuous service as Literate Assistant-cum-typist from 10.06.1982 till date except for small breaks, when she was illegally kept out of employment for 01.08.1989 to 18.04.1993. When the order of termination was set-aside by the Tribunal and when she was ordered to be reinstated even that interregnum comes to an end. Therefore, she sought for regularization. When the same was not granted to her, she approached the Tribunal in Application No.1495/1995 for regularization. The Tribunal by an order dated 12.08.1996 directed the respondents to verify the factual aspects and pass necessary orders within three months. The authorities declined to regularize her services by an order dated 11.11.1996. Challenging the same, the applicant preferred an Application to the Tribunal in Application No.8444/1996.
5. The Tribunal by its order dated 10.3.1999 allowed the Application, directed an investigation to find out whether 7 the applicant was actually working as indicated in the experience certificate and if she is found working, to extend the benefit of absorption from the date similar persons were granted the benefit of the absorption with all consequential benefits. Thereafter, the applicant submitted a representation to the respondents on 16.7.1999. She also submitted her statement before the fourth respondent on 18.11.1997. On consideration of the said representation and after investigation, the fourth respondent rejected her case for regularization by an order dated 27.3.1998. Against the said rejection, she preferred an appeal on 30.5.1998 and also complained that she has not been given the order dated 21.2.1998 rejecting her request. Thereafter, the first respondent directed the second respondent to furnish a copy of the order dated 21.2.1998. Copy was furnished to her. Being aggrieved by the same, she preferred an Application before the Tribunal challenging the same. The Tribunal by the impugned order held that the applicant cannot be denied regularization solely on the ground that her appointment is after 1.7.1984. Therefore, a direction was issued to 8 regularize the services of the applicant on completion of 10 years of service within 60 days from the date of receipt of the order. Further, it was held the applicant would be entitled to all consequential benefits with effect from the date of regularization in terms of the order and all the wages that are stated to be due from April 2002 shall be paid with interest thereon at 12 p.a. Aggrieved by the said order, the State has preferred this Writ Petition.
6. The learned Government Advocate assailing the impugned order contends that, the material on record discloses that the appointment of the applicant at the inception is illegal. It is not a case of irregular appointment. In view of the law laid down by the Apex Court in the case of SECRETARY, STATE OF KARNATAKA AND OTHERS Vs. UMADEVI AND OTHERS reported in 2006 (4) 1 SCC, she is not entitled to regularization. However, the Government has taken a decision to extend the benefit to persons who could not be regularized, in terms of the Karnataka Daily Wage Employees Welfare Act, 2012 and therefore all that she would be 9 entitled is the benefit under that Act, if she satisfies the conditions stipulated therein, which also includes continuation of service till she attains the age of superannuation.
7. Per contra, the learned counsel for the applicant submitted that, the applicant was appointed as a Literate Assistant on 10.6.1982 and therefore she is entitled to regularization under the Dharwad Daily Wages case. Even otherwise, she has been in continuous service from 1.4.1988 onwards and her name finds a place in MR and she is drawing a consolidated salary of Rs.676.50. She has completed more than 10 years from that day onwards and therefore the law laid down in Umadevi's case in para 53 is attracted. In fact, as is clear from the order passed by the Tribunal on an earlier occasion where the order of termination issued by the Range Forest Officer was set aside on the ground that the order of appointment is issued by the Deputy Conservator of Forest which shows her appointment 10 is valid at least from 1.4.1988 and therefore she is entitled to regularization as held by the Tribunal.
8. In the light of the aforesaid facts and the rival contentions, the point that arise for our consideration in this Writ Petition is, Whether the applicant is entitled to regularization of her services?
9. The Apex Court in the case of Umadevi in para 53 has held as under:-
"53. One aspect needs to be clarified.
There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (Supra), R.N.Nanjundappa (Supra) and B.N.Nagarajan (Supra) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of 11 orders of the Courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.
We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme".
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10. Therefore, from the aforesaid judgment it is clear, regularization could be of only irregular appointments and not illegal appointments. If the appointment is illegal at the inception, even if a person is in continuous service for more than 10 years, possess the prescribed qualification and is working against a sanctioned post, regularization is not permissible. The said benefit is extended only to irregular appointments. In the aforesaid judgment it was clarified that the decisions which run counter to the principles settled in the said decision or in which directions running counter to what they have held herein will stand denuded of their status as precedents. They also clarified that, regularization, if any already made, but not sub judice, need not be reopened based on the said judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent those not duly appointed as per the constitutional scheme.
11. In terms of the order passed by the Tribunal, authorities investigated the matter. The said investigation 13 showed that the certificates issued by Sri B.K.Nagaraju to the effect that the applicant was working in the office at Dandeli, Manchikere and Srinivasapura is not correct. In fact, in the enquiry he has admitted that she was working as a part time maid servant in his house. He has paid the salary from his pocket and no salary is paid from the Government office nor she was working in the office and therefore action was taken against the said Sri B.K.Nagaraju and a penalty of withholding of two increments was passed. He has categorically stated that he has not obtained any order for her appointment from his official superiors. In view of the aforesaid facts emerging from the investigation, the representation of the applicant was considered and her request for regularization was rejected. It was contended that her appointment from 10.6.1982 to 31.3.1988 is that of a daily wager, she was appointed from 1.4.1988 at Hebbe Range of Chickmagalur on a consolidated salary of Rs. 676.50 and that appointment order was issued by the Deputy Conservator of Forests. The order appointing the applicant by the Conservator of Forests is not produced. In 14 other words, it has not seen the light of the day either at the time of investigation or before the Tribunal at any point of time. Now, the argument is based on the order of the Tribunal which set aside the order passed by the Range Forest Officer terminating his services on the instructions of Deputy Conservator of Forests on the ground that as he was not the appointing authority he had no right to terminate her services. Even in those proceedings the order of appointment was not produced. It is in that proceedings, after setting aside the order, a direction was issued to investigate and then consider her request for regularization. Therefore, that proceedings and the order of the Tribunal would not establish that she was appointed by the Deputy Conservator of Forests and it was a legal appointment. Subsequently, she was continued in service after reinstatement. It is only when she made a request for regularization her request is rejected on the basis of the report after conducting the investigation. 15
12. Therefore, this material on record clearly establishes that Sri B.K.Nagaraju, the Range Forest Officer, appointed her as a maid servant in his house, he was taking her wherever he was appointed, i.e., Dandeli, Manchikere and Srinivasapura from 10.6.1982 to 31.3.1988, to enable her to seek employment. He has given the experience certificate. It is a clear case of misrepresentation, fraud, which vitiates the initial appointment. Even on such recommendation there is no order showing the appointment by the Deputy Conservator of Forests as contended by the applicant. Therefore, it is a case of backdoor entrance, it is a case of illegal appointment and in view of the law declared by the Apex Court in Umadevi's case such an illegal appointment cannot be regularized, even if she has continued for more than 10 long years. Therefore, the authorities were justified in refusing to regularize her services. After the judgment of the Apex Court when the law was declared and nullifying the order of the Apex Court and this Court contrary to the said pronouncements as number of persons who were illegally continued still in service, 16 probably to mitigate their misery, the Government of Karnataka has come up with a legislation called the Karnataka Daily Wage Employees Welfare Act, 2012 extending service benefits to them. Therefore, if she satisfies the conditions mentioned therein she would be entitled to the benefit under that Act and not regularization of employment as directed by the Tribunal in the impugned order. In that view of the matter, we pass the following order:-
(a) Writ Petition is allowed.
(b) The impugned order is hereby set aside.
(c) It is made clear that allowing of the Writ
Petition, setting aside the order of the
Tribunal, would not ipso facto entitle the respondents to terminate her services as they had not terminated the services earlier.
(d) It is open to her to make a representation in
terms of the Karnataka Daily Wage
17
Employees Welfare Act, 2012 and the
respondents shall consider the said
representation and grant her the relief to which she is entitled to under that Act, if she satisfies the conditions, including continuing her services till she attains the age of superannuation.
Sd/-
JUDGE Sd/-
JUDGE ckl/-