Karnataka High Court
The State Of Karnataka vs Sri. S. T. Narayana Gowda on 10 November, 2021
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S. SUJATHA
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
WRIT PETITION No.6285/2021 (S-KSAT)
c/w.
WRIT PETITION No.6284/2021, (S-KSAT)
WRIT PETITION No.6378/2021 (S-KSAT)
W.P.No.6285/2021
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF PUBLIC WORKS,
PORTS & INLAND WATER TRANSPORT
3RD FLOOR, VIKASA SOUDHA
BENGALURU - 560 001
2. THE CHIEF ENGINEER
NATIONAL HIGHWAY ZONE
K.R. CIRCLE,
BENGALURU - 560 001
3. THE ASSISTANT EXECUTIVE ENGINEER
NATIONAL HIGHWAY SUB-DIVISION
K.R. CIRCLE, BENGALURU - 560 001
.. PETITIONERS
(BY SRI.ARUNA SHYAM .M., AAG
a/w. SMT.SHILPA S. GOGI, HCGP) (PHYSICAL HEARING)
2
AND:
SRI.B.RAJANNA
S/O. LATE BASAVARAJU
AGED ABOUT 57 YEARS
WORKING AS ASSISTANT ENGINEER
OFFICE OF THE
ASSISTANT EXECUTIVE ENGINEER
NATIONAL HIGHWAY SUB-DIVISION
BENGALURU - 560 001 .. RESPONDENT
(BY SRI.RANGANATH S.JOIS, ADVOCATE) (VC)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO
(a) CALL FOR RECORDS PERTAINING TO THE ORDER
DT.26.08.2020 IN APPLICATION NO.1430/2019 PASSED BY
THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT
BENGALURU;
(b) ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION TO QUASH / SET-ASIDE THE
ORDER DT. 26.08.2020 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT BENGALURU IN
APPLICATION NO.1430/2019 (ANNEXURE-C); AND
(c) DISMISS THE APPLICATION NO.1430/2019 FILED BY THE
RESPONDENT BEFORE THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU.
W.P.No.6284/2021
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF PUBLIC WORKS,
PORTS & INLAND WATER TRANSPORT
3RD FLOOR, M.S. BUILDING
3
BENGALURU - 560 001
2. THE CHIEF ENGINEER
(C & D), K.R. CIRCLE
BENGALURU - 560 001
3. THE ASSISTANT EXECUTIVE ENGINEER
NO.2, SUB-DIVISION
CHANNAPATTANA
RAMANAGARA DISTRICT - 562159
.. PETITIONERS
(BY SRI.ARUNA SHYAM .M., AAG
a/w. SMT.SHILPA S. GOGI, HCGP) (PHYSICAL HEARING)
AND:
SRI.S.T.NARAYANA GOWDA
S/O. S.K.THIMME GOWDA
AGED ABOUT 60 YEARS
WORKING AS JUNIOR ENGINEER
OFFICE OF THE
ASSISTANT EXECUTIVE ENGINEER
PWD SUB-DIVISION, NO.2
CHANNAPATTANA
RAMANAGARA DISTRICT
RESIDING AT D.T.RAMU CIRCLE
PWD QUARTERS, CHANNAPATTANA
RAMANAGARA DISTRICT - 562 160 .. RESPONDENT
(BY SRI.RANGANATH S.JOIS, ADVOCATE) (VC)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO
(a) CALL FOR RECORDS PERTAINING TO THE ORDER
DT.26.08.2020 IN APPLICATION NO.3367/2019 PASSED BY
THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT
BENGALURU;
4
(b) ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION TO QUASH / SET-ASIDE THE
ORDER DT. 26.08.2020 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT BENGALURU IN
APPLICATION NO.3367/2019 (ANNEXURE-B); AND
(c) DISMISS THE APPLICATION NO.3367/2019 FILED BY THE
RESPONDENT BEFORE THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU.
W.P.No.6378/2021
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF PUBLIC WORKS, PORTS
& INLAND WATER TRANSPORT (SERVICES) C-1
3RD FLOOR, M.S. BUILDING
BENGALURU - 560 001
2. THE CHIEF ENGINEER
(C & D), K.R. CIRCLE
BENGALURU - 560 001
3. THE EXECUTIVE ENGINEER
DEPARTMENT OF PUBLIC WORKS
PORTS AND INLAND WATER TRANSPORT
SUB-DIVISION, GUBBI TALUK
TUMAKURU DISTRICT - 572 101
.. PETITIONERS
(BY SRI.ARUNA SHYAM .M., AAG
a/w. SMT.SHILPA S. GOGI, HCGP) (PHYSICAL HEARING)
AND:
SRI.JAGADEESHAIAH
SINCE DECEASED, REP. BY LRs.,
VIDE COURT ORDER DT.27.10.2021
5
1(a) SMT. SHASHIKALA R
W/O. LATE JAGADEESHAIAH
AGED 49 YEARS
R/O. NO.AMSHAJA NILAYA
KEB LAYOUT,
NEAR LAKSHMI THEATER
BATWADI, TUMKUR
1(b) ANKITH J
S/O. LATE JAGADEESHAIAH
AGED 26 YEARS
R/O. NO.AMSHAJA NILAYA
KEB LAYOUT,
NEAR LAKSHMI THEATER
BATWADI, TUMKUR
.. RESPONDENTS
(BY SRI.RANGANATH S.JOIS, ADVOCATE) (VC)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO
(a) CALL FOR RECORDS PERTAINING TO THE ORDER
DT.26.08.2020 IN APPLICATION NO.4881/2019 PASSED BY
THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, AT
BENGALURU;
(b) ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION TO QUASH / SET-ASIDE THE
ORDER DT. 26.08.2020 PASSED BY THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL AT BENGALURU IN
APPLICATION NO.4881/2019 (ANNEXURE-B); AND
(c) DISMISS THE APPLICATION NO.4881/2019 FILED BY THE
RESPONDENT BEFORE THE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY,
S.RACHAIAH J., MADE THE FOLLOWING:
6
ORDER
Since common and akin issues are involved in these matters they are taken up together and disposed of by this common order.
2. These writ petitions are filed by the petitioner/State challenging the common order dated 26.08.2020 passed by the Karnataka State Administrative Tribunal at Bengaluru ("Tribunal" for short) dated 26.08.2020 in application Nos.1430/2019, 3367/2019 and 4881/2019.
In W.P No.6285/2021
3. The respondent was working as Assistant Engineer in Public Works Department on daily wage basis ever since his initial appointment i.e. with effect from 07.05.1986 as against the vacant post. His service was terminated with effect from 25.02.1988. He has approached the Labour Court against the termination. The Labour Court allowed the reference and directed to re-instate the respondent. The State Government has filed W.P Nos.33401/2002 C/w 25911/2002 challenging the 7 award of the Labour Court. This Court, on 27.03.2006 dismissed the writ petition and confirmed the order of the Labour Court.
4. The respondent further submits that several Junior Engineers/ Assistant Engineers have been appointed on contract basis and have been regularized by order dated 29.09.1994 even in the absence of vacant post. Hence, they also seek regularization on principle of parity with other employees.
5. Sri.Aruna Shyam, learned Additional Advocate General representing the State submits that the respondent was not appointed to the sanctioned post and he is not having continuity of service, hence the Government has rightly issued the endorsement. Further, learned Additional Advocate General submits that viewed from any angle, the respondent is not eligible to be regularized. The Tribunal ought not to have considered the applications. Since the Tribunal has committed an error in setting aside the endorsement issued by the Government, the petitioner has approached this Court seeking to set aside the order passed by the Tribunal, hence, he prays to allow the petition.
8In W.P No.6284/2021
6. The respondent in W.P No.6284/2021 was working as a Junior Engineer with effect from 25.07.1983 in the office of the Assistant Executive Engineer No.2, Sub Division, Public Works Department, Channapatna. His service was terminated without an order with effect from 19.05.1985. As against the termination, he filed a reference before the Labour Court. The Labour Court allowed the reference and directed for reinstatement. Since the Government has not implemented the orders of the Labour Court, he has approached this Court seeking direction to implement the order of the Labour Court. This Court, by order dated 01.07.2003 directed the Government to implement the award of the Labour Court, against which, the State Government had filed a writ petition before this Court in W.P No.25648/2004 seeking to set aside the award passed by the Labour Court. This Court dismissed the writ petition with a direction to implement the award and directed the payment of back wages to the respondent herein. The respondent herein has made a representation to the Government stating that he 9 has completed 33 years in the department and hence, requested the authority to regularize him also on par with other similarly placed employees. The same came to be rejected by the Government vide endorsement dated 31.01.2019, against which, the respondent herein approached the Tribunal seeking to set aside the endorsement. The Tribunal after considering the material and facts of the case allowed the petition by setting aside the endorsement issued by the Government dated 31.01.2019.
7. Sri.Aruna Shyam, learned Additional Advocate General representing the State submits that the respondent was not appointed as against the sanctioned post and he is not having continuity of service, hence the Government has rightly issued the endorsement. Further, learned Additional Advocate General submits that viewed from any angle, the respondent is not eligible to be regularized, the Tribunal ought not to have considered the applications, since the Tribunal has committed an error in setting aside the endorsement issued by the Government, the petitioner has approached this Court seeking to 10 set aside the order passed by the Tribunal, hence, he prays to allow the petition.
8. Per contra, Sri.Ranganath S.Jois, learned counsel for the respondent submits that so for as the sanctioned post is concerned, it is the scheme formulated in view of the judgment of Hon'ble Supreme Court directing the daily wage workers to be regularized. Hence, the question of appointment to the sanctioned post would not arise. Further, he submits that so far as continuity of the service of the respondent herein is concerned, the Government has terminated illegally without giving opportunity. Hence, the respondent approached the Labour Court. The Labour Court considering all the documents and evidence advanced has rightly passed the award to reinstate the respondent. Hence, the arguments canvassed by the learned Additional Advocate General cannot be taken into consideration, as such, the learned counsel prays to reject the writ petition with cost.
11In W.P No.6378/2021
9. The brief facts of the case of the respondent herein are that the respondent was working as Junior Engineer with effect from 01.03.1988 in the office of the Assistant Executive Engineer, Gubbi, Tumkur District. His service of 10 years was completed as on 31.03.1988. In the year 1999, he has made a representation to the Government seeking his regularization on the ground that similarly situated daily wage employees were appointed with diploma and engineering qualification, though they have not been appointed against a sanctioned post their appointment have been regularized by virtue of an order dated 29.09.1994. Hence, he is seeking regularization on par with other employees by virtue of Government order dated 29.09.1994.
10. Sri.Aruna Shyam, learned AAG representing the State submits that the respondent worked as daily wage employee engaged in PWD on 05.09.1998. Further, he has not completed 10 years or more in the duly sanctioned post since he had not obtained requisite qualification to the said post. He has 12 not produced any marks card to show that he has completed Bachelor of Engineer as on date when the other employees were regularized. Hence, question of giving the benefit on par with other employees would not arise. Further, he submits that respondent was engaged on daily wage basis under Monthly Rated Establishment from 01.03.1988 till 1998 without having any prescribed qualification to the post of Assistant Engineer. This fact ought to have been considered by the Tribunal, the Tribunal erred in coming to the conclusion that he has completed 10 years of service and he had prescribed qualification as on date when the Government Order dated 30.06.1998 was in force. The learned counsel seeks to set aside the order of the Tribunal.
11. Sri.Ranganna S.Jois, learned counsel for the respondent submits that the Government has not at all considered the representation made by the respondent though similarly placed diploma or engineering graduates have been regularized. The respondent herein was discriminated by the Government. The Government ought to have considered the 13 judgment of the Hon'ble Supreme Court in the case of MALATHI DAS (retired) now P.B.Mahishy & Others v. SURESH & Others reported in (2014) 13 SCC 249 ("MALATHI DAS case" for short) instead of considering the judgment in the case of SECRETARY, STATE OF KARNATAKA & Others v. UMADEVI & Others reported in (2006) 4 SCC 1 ("UMADEVI case" for short). Since the Government has committed an error in not considering the judgment of the Hon'ble Supreme Court and not considering the respondent's representation, the Tribunal has rightly appreciated and appropriately allowed the application and he submits to dismiss the writ petition with costs.
12. We have carefully considered the arguments advanced by the learned counsel appearing for the parties and perused the material on record. At this point, it is relevant to refer to the judgment of Hon'ble Supreme Court in the case of UMADEVI (supra). Paragraph 53 of the judgment is relevant for consideration which reads as under:
"53. One aspect needs to be clarified.
There may be cases where irregular appointments (not illegal appointments) as 14 explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in paragraph 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 orders of the courts or of tribunals. The question of regularization 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 regularize 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 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 15 clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
13. On careful perusal of the above judgment, we are of the opinion that certain guidelines for regularisation have been issued by the Hon'ble Supreme Court in the case of UMADEVI (supra), the same are summed up and following are the three essential requirements for regularization which are as under:
a) Employees should have been appointed as against the sanctioned post.
b) Employees should have worked for more than 10 years as daily wage worker / ad-hoc worker.
c) They should have possessed the minimum qualification stipulated for the appointment Subject to three requirements being satisfied, even if the appointment process did not involve competitive selection, the 16 appointment would be treated irregular and not illegal and thereby qualify for regularization.
14. On careful perusal of the material adduced by the respondents in their reply as well as the documents, it would disclose that both the respondents have fulfilled the requirements as stipulated in UMADEVI's case stated supra. However, the Government/petitioners herein denied the benefit of regularization to the respondents herein which is in violation of Article 14 of the Constitution of India and also the principles of parity. As similarly situated employees have been regularized by virtue of the order dated 29.09.1994, the same could have been given to the respondents also. Considering the above mentioned point, it is necessary to extract paragraph No.1 of the order dated 02.12.1994 which reads as follows:
"1. Government are pleased to direct that the Daily Rated Engineering Graduates and Diploma Holders working in Public Works and Irrigation Departments who have been appointed on or after 1-7-84 and before 15- 10-92 and who are continuing in service as on 29-9-94 and who fulfill all the conditions laid 17 down in Government Orders No.DPAR 2 SLC 90 dated 6-8-90, DPAR 13 SLC 94 dated 29-9-94 and ¹D¸ÀÄE 17 ¸É¸ÀÜD 94 dated 20-10-94 shall be brought on Monthly Rated Establishment against the Monthly Rated Establishment posts created in the Government Order."
The above requirements clearly indicate that number of sanctioned posts of Assistant Engineers was 326 and Junior Engineers was 528 in Monthly Rated Establishment. The posts in M.R.E cease when the incumbent is absorbed in regular service or resigns from service. It is made clear that clause No.5 of the Government Order dated 02.12.1994 stipulates certain guidelines which are mentioned below:
(i) "They should have been appointed on or after 1-7-84 and before 15-10-92.
(ii) They should be continuing in service beyond 1-7-84 or from the date of appointment on daily wages whichever is later till the date of 29-9-94.
(iii) They should have been employed and continued on whole-time basis till 29-9-94.
(iv) The daily rated Graduate Engineers brought on Monthly Rated Establishment are eligible for consolidated salary of Rs.2050/- per month 18 subject to educational qualification and other qualifications prescribed in the Cadre and Recruitment Rules to the post of Assistant Engineer.
(v) The daily rated Diploma Engineers brought on Monthly Rated Establishment are eligible for consolidated salary of Rs.1520/- per month subject to educational qualifications and other qualifications prescribed in the Cadre and Recruitment Rules to the post of Junior Engineers.
(vi) Further, they will be entitled to an Annual Increase of Rs.15/- (without any allowance) subject to following the principles laid down in Rule 51 of Karnataka Civil Service Rules.
(vii) All the Graduate Engineers and Engineering Diploma holders who do not fulfill the eligibility and suitability criteria laid down above, for absorption in Monthly Rated Establishment shall be retrenched. All such retrenched Graduate Engineers and Engineering Diploma Holders shall be entitled to claim compensation gratuity if any, to which they are legally eligible.
(viii) They shall be posted against the vacant posts in the department and for the period such vacant posts are held by the Engineers on Monthly Rated Establishment in accordance with these orders, 19 the regular post in the time scale of pay shall stand held in abeyance.
(ix) The daily rated Diploma and Graduate Engineers
who are brought under Monthly Rated
Establishment in accordance with these orders are liable for transfer and such transfer should as for as possible be within the zones and no such inter-
zonal transfer should be made without prior approval of Government."
15. By virtue of the above circular and its conditions some of the ad-hoc/daily wage workers have been regularized. Though after having fulfilled the criteria stipulated in the circular, the respondents herein have not been considered for regularisation. The scheme of regularization has been denied, hence, they have approached the Labour Court for their continuity of service for their illegal dismissal/termination from the respective departments. The issue of their illegal termination has already been decided by the Labour Court and affirmed by this Court on 27.03.2006 in W.P Nos.33401/2002 C/w 25911/2002. Such being the fact their regularization for the post has been denied. It is contrary to the circular issued by 20 the same Government. Since the respondents herein have fulfilled the criteria and other similarly placed employees have already been regularized by virtue of circular dated 29.09.1994 and by virtue of UMADEVI's case, these respondents representation should have been considered by the authority. The Government has erred in coming to the conclusion that, the respondents herein have not fulfilled the conditions as stipulated in the case which is bad in law and unsustainable.
16. Further, it is relevant to place in reliance to the judgment of the Hon'ble Supreme Court in the case of MALATHI DAS (retired) now P.B.Mahishy & Others v. SURESH & Others reported in (2014) 13 SCC 249. It is relevant to extract paragraphs 13 and 14 which read as under:
"12. It is not in dispute that the original batch of employees who had filed writ petition Nos. 33541- 571/1998 on the basis of which the writ petitions filed by the respondents herein (W.P. Nos. 39117-
176/1999) were allowed by the order dated 15.12.1999 have been regularized. It is also not in dispute that out of the 445 employees who had 21 filed writ petition Nos.39117-176/1999, by separate government orders, the service of 161, 64 and 55 employees have been regularized in three batches. The records placed before the Court would indicate that 7 other persons have been regularized during the pendency of the present appeal. In a situation where a Scheme had been framed on 29.12.2005 to give effect to the order of the High Court dated 15.12.1999 passed in the writ petitions filed by the respondents herein and many of the similarly situated persons have been regularized pursuant thereto the action of the appellants in not granting regularization to the present respondents cannot appear to be sound or justified. The fact that the regularization of 55 employees, similarly situated to the present respondents, was made on 18.04.2006 i.e. after the decision of this Court in Umadevi is also not in serious dispute though Shri Bhat, learned Senior Counsel for the appellants, has tried to contend that the said regularizations were made prior to the decision in Umadevi. The date of the order of regularization of the 55 persons i.e. 18.4.2006 will leave no doubt or ambiguity in the matter.22
13. In the aforesaid undisputed facts it is wholly unnecessary for us to consider as to whether the cases of persons who were awaiting regularization on the date of the decision in Umadevi is required to be dealt with in accordance with the conditions stipulated in para 53 of Umadevi (supra) inasmuch as the claims of the respondent employees can well be decided on principles of parity. Similarly placed employees having been regularized by the State and in case of some of them such regularization being after the decision in Umadevi (supra) we are of the view that the stand taken by the appellants in refusing regularization to the respondents cannot be countenanced. However, as the said stand of the appellants stem from their perception and understanding of the decision in Umadevi we do not hold them liable for contempt but make it clear that the appellants and all the other competent authorities of the State will now be obliged and duty bound to regularize the services of the respondents (74 in number) which will now be done forthwith and in any case within a period of two months from the date of receipt of this order."23
On perusal of the above judgment, it is very clear that the principles of parity would be applicable to the similarly placed employees for regularization. Considering the above said judgment and facts of the case on hand, the respondents are entitled for principles of parity for their regularization.
17. Insofar as W.P No.6378/2021 is concerned, the respondent in the case was appointed as Junior Engineer with effect from 01.03.1988 to 31.08.1999 and he was also brought under Monthly Rated Establishment as on 31.07.1998 and appointed as Assistant Engineer. He has made representation to the Government to consider for regularization as he has completed 10 years of service as daily wage workers and also had passed the stipulated educational qualification i.e. B.E Degree as on the date before considering him under M.R.E. scheme. As per the records, it reveals that the respondent in this case had obtained B.E Degree in the year 1995. So considering the service and educational qualification he should have been considered for regularization as per the circular dated 29.09.1994. However, the Government/ petitioners herein failed 24 to consider the representations and issued endorsement stating that the respondents have not fulfilled the criteria of UMADEVI's case (supra), point No.1 and 4 which is contrary to the circular dated 29.09.1994.
18. To sum up the contentions of respondents, the respondents have fulfilled the criteria of continuity of service of more than 10 years and also had obtained requisite qualifications as stipulated in the C & R Rules for the post of Assistant Engineers etc. Inspite of having passed the two stipulated conditions, they have been denied for reguarization. It reveals from the record that one of the respondents herein has already retired and one of the respondents has died and his legal representatives are brought on record. The Government ought to have considered the representations by virtue of order of the Tribunal.
19. On perusal of the well reasoned order passed by the Tribunal, we are of the considered opinion that interference in such order would not be called for and we do not find any 25 infirmity or irregularity in the order which is impugned herein, as a result, writ petitions filed by the State stands dismissed.
In view of the disposal of the main matters, pending IA's stands disposed off as calling for no further orders.
Sd/-
JUDGE Sd/-
JUDGE UN