Karnataka High Court
State Of Karnataka vs Sri Mayanna Gowda M on 24 August, 2023
Author: G. Narendar
Bench: G. Narendar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.8700 OF 2021 (S-KSAT)
BETWEEN:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO GOVT
FINANCE DEPARTMENT
(COMMERCIAL TAXES),
VIDHANA SOUDHA
BENGALURU-560001
2. THE COMMISSIONER OF
COMMERICIAL TAXES
GANDHINAGAR
BENGALURU-560009
3. THE ADDITIONAL COMMISSIONER
OF COMMERCIAL TAXES (ENF)
KORAMANGALA
BENGALURU-560047
4. THE JOINT COMMISSIONER OF
COMMERCIAL TAXES (VIG)
KORAMANGALA
BENGALURU-560047
...PETITIONERS
(BY SMT SHILPA S GOGI, AGA)
2
AND
1. SRI MAYANNA GOWDA M
S/O LATE MARIMAYANNA GOWDA
AGED ABOUT 51 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
2. RAMACHANDRAIAH
S/O LATE LINGAIAH
AGED ABOUT 53 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
3. THE KRISHNA
S/O LATE BORAIAH
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
4. S.N NARASE GOWDA
S/O LATE NARASEGOWDA
AGED ABOUT 53 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
3
5. B MANJUNATH
S/O LATE A BORAIAH
AGED ABOUT 50 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL
COMMISSIONER OF COMMERCIAL TAXES
(ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
6. BASAVARAJ R
S/O LATE RAMEGOWDA
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
7. ESHWARAPPA
S/O LATE NARAYANAPPA
AGED ABOUT 56 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
8. ANKAIAH
S/O LATE LINGAIAH
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
4
9. N SHANKAR
S/O LA NARASIMHAIAH
AGED ABOUT 52 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
10 . JAYALAKSHMI BAI
W/O LATE GANGOJI RAO
AGED ABOUT 57 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
11 . B SHIVAKUMAR
S/O LATE BORAIAH
AGED ABOUT 49 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
12 . M RAMESH
S/O LATE MARIYAPPA
AGED ABOUT 50 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
5
13 . SHIVA SWAMY
S/O LATE GAVIYAPPA
AGED ABOUT 53 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
14 . T.B. NAGARAJ
S/O LATE BETTAIAH
AGED ABOUT 54 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
15 . G. PRAKASH
S/O LATE GANGIAH
AGED ABOUT 54 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
16 . B.T MARANNA
S/O LATE THIMMARAYAPPA
AGED ABOUT 51 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
17 . S. RAMANAIAH
6
S/O S.JANAIAH
AGED ABOUT 48 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
18 . KAMBAIAH
S/O LATE PUTTASWAMY
AGED ABOUT 52 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
19 . RANGARAJU T
S/O EARANNA
AGED ABOUT 56 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
20 . ZAHEER AHMED
S/O MOHD, JABBAR
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
...RESPONDENTS
(BY SRI LAKSHMINARAYANA V, SENIOR COUNSEL FOR
SMT L ANUSHA, ADVOCATE FOR R1 TO R12, R14 TO R18)
7
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 29.06.2020 IN A.NOS.205-224 AND 324-343/2017
ANNEXURE-C PASSED BY THE HON'BLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, POONACHA J., MADE
THE FOLLOWING:
ORDER
The present writ petition is filed by the State challenging the order dated 29.06.2020 passed in Application Nos.205-224 and 324-343/2017 passed by the Karnataka State Administrative Tribunal (for short referred to as 'the Tribunal'), whereunder, the Tribunal allowed the applications filed by the respondents.
2. The relevant facts necessary for consideration of present petition are that, the respondents who are the applicants before the Tribunal are working as Hamalies in the Department of Commercial Tax, Government of Karnataka, since 8 1984-1987 for more than three decades without any interruption. On a threat of the termination, they approached the Tribunal in Application Nos.911- 928/2003 and by order dated 26.07.2005, the Tribunal directed the State authorities to await the decision of the Hon'ble Supreme Court regarding regularization and to maintain the status-quo till then. Though, even after the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka and others, Vs. Umadevi (3) and others,1 they have been continued in service. It is the case of the respondents before the Tribunal that, since minimum wage was not granted to the respondents despite submitting various representations, they filed Application No.4462/2007 and Application Nos.7500- 7536/2011 before the Tribunal seeking minimum pay of the pay scales attached to the Group-D post and 1 (2006) 4 SCC 9 regularize their service. The said applications came to be dismissed by the Tribunal vide order dated 24.02.2012. Being aggrieved by the same, W.P.No.7222-7241/2002 was filed and this Court by order dated 25.09.2003, dismissed the writ petition observing that it is open for the applicants to approach the authorities under the Minimum Wages Act.
3. It is the case of the respondents before the Tribunal that the State Government addressed a communication dated 02.07.2014, to the Commissioner of Commercial Taxes that Hamalies have been appointed as temporary employees, it is not possible to regularize their services and hence fixed their pay at the rate prescribed under the Minimum Wages Act. Vide communication dated 15.11.2014, the Commissioner for Commercial Tax directed the Additional Joint Commissioners not to 10 engage the services of Applicants/Hamalies for more than four hours in a day and that despite issuance of the said circular, the respondents were made to work for more than 8 hours a day and sometimes, 10 to 12 hours and in addition they were required to travel to far away check posts. In reply to the communication, the Additional Commissioner for Commercial Taxes (Enforcement) South Zone, Bengaluru and the Joint Commissioner of Commercial Taxes (Vigilance) Bengaluru, sent replies dated 12.12.2014 and 30.12.2014, stating that, the nature of work that has been carried out by the Hamalies takes 8 hours or more per day and the restriction of the work for 4 hours may be relaxed.
4. The respondents having put in 30 years of service and their services has not been regularized despite various similarly placed persons having been regularized on their completion of 10 years of service, 11 they have approached the Tribunal seeking inter-alia payment of minimum wages and regularization in accordance with the Judgment of the Hon'ble Supreme Court.
5. The petitioner-State entered appearance before the Tribunal and contested the claim of the respondents contending, inter-alia that, the respondents were not working under any sanctioned posts and that the respondents were appointed on 'task specific basis' whereunder, they were being utilized for unloading and loading the goods in transit. Though their services were utilized in the check posts of the commercial taxes department to verify the suspected goods under transit and since it was difficult to unload and load the goods and physically verify each and every consignment in the goods vehicle by the officials on duty, the services of the respondent No.3 was utilized and consequent to the introduction 12 of the Goods and Services Tax Act, (GST), the check posts which were functioning earlier have been abolished from that date and currently no check posts were functioning in the State and hence, services of Hamalies utilized in these check posts earlier are not required in the changed circumstances. The State authorities referred to various litigations and orders passed by this Court and the Tribunal, contending that the relief sought for in the petition are not liable to be granted.
6. The Tribunal has, in detail considered the factual matrix and noticed that, the respondents were admittedly working as Hamalies from 1984-1987 and they have rendered services for more than three decades without any interruption. With regard to the issue of sanctioned posts, as per the Karnataka Commercial Taxes Manual at Clause 17, which deals with staff pattern and duties, the functions of check 13 posts, the officers and staff in each shift, it was noticed that there were required to be one or two Hamalies in each shift. Further it is noticed that, the check posts were required to function in three shifts i.e., from 8.00 a.m. to 2.00 p.m., from 2.00 p.m. to 9.00 p.m. and from 9.00 p.m. to 9.00 a.m. and the duties of the Hamalies among others, including stopping of vehicles at the check posts, assisting in conducting physical verifications and carefully unloading of goods during such verification, and any other work assigned by the Commercial Tax Officer on duty. It is further noticed that, in the mobile check posts also, the said pattern is followed.
7. Having noticed the factual matrix, the Tribunal has recorded a categorical finding that "it is beyond doubt that Hamalies work at least 8 hours a day and discharge duties like other regular employees like Commercial Tax Officer, Commercial Tax 14 Inspector, etc.,". The Tribunal recorded a categorical finding that the respondents fulfilled the condition precedent for regularization and were entitle for regularization in Group-D posts.
8. Apart from appreciating the factual matrix of the matter, the Tribunal at paragraph Nos.51 to 63 noticed the legal position including the Judgments of this Court with regard to regularization of employees, as also the Judgments of the Hon'ble Supreme Court in the case of State of Karnataka and others Vs. M.L.Kesari and others2, Malathi Das (Retired) Now P.B.Mahishy and others Vs. Suresh and others3, State of Uttar Pradesh and others Vs. Arvind Kumar Srivastava and others4, Sheo narain Nagar and others Vs. State of Uttar 2 (2010) 9 SCC 247, 3 (2014) 13 SCC 249 4 (2015) 1 SCC 347 15 Pradesh and another5, Prem Singh Vs. State of Uttar Pradesh and others6, Union of India and others Vs. Central Administrative Tribunal and others7, Jivanlal Vs. Pravin Krishna, Principal Secretary and others8, State of Punjab and others Vs. Jagjit Singh and others9, Sabha Shanker Dube Vs. Divisional Forest Officer and others10.
9. The Tribunal at paragraph No.64 has considered the aspect of parity. Further at paragraph No.21, the Tribunal has considered various government orders (17 in number), wherein the State Government has issued orders of regularization of employees. The Tribunal has also at paragraph No.12 considered the cases of about ten instances of 5 (2018) 13 SCC 432 6 AIR 2019 SC 4390 7 (2019) 4 SCC 290 8 (2016) 15 SCC 747 9 (2017) 1 SCC 148 16 similarly placed persons whose services have been regularized.
10. After having noticed the aforementioned, the Tribunal by its order dated 29.06.2020 allowed the application filed by the respondent and passed the following order :
"Applications are allowed and Respondents are directed to regularize services of Applicants as Hamalies in Group-D posts from the date on which they completed ten years of service in terms of decisions of Hon'ble Supreme Court referred to in paragraph under Legal Position referred above and grant them all consequential benefits including pay scale attached to Group-D post, after adjusting payment, if any, made under Minimum Wages Act within Five months from the date of receipt of certified copy of this order, failing which the Applicants would be entitled to interest at the rate of 8% on delayed extension of relief."
11. Being aggrieved, the present writ petitions are filed.
12. We have heard learned AGA for the Petitioner-State and learned Senior Counsel Sri. V.Lakshminarayana for the respondents, who are the 10 (2019) 12 SCC 297 17 applicants before the Tribunal. Elaborate submissions were made by both the learned counsels. Written submissions and various Judgments have been relied upon. Since an elaborate reference of the case laws have already been made by the Tribunal, we shall refer to those Judgments as may be necessary for the adjudication of the present petitions. The question that arises for consideration is, "Whether, the order of the Tribunal is liable to be interfered with?"
13. There is not much dispute on the factual aspects of the matter, the same having been elaborately being considered by the Tribunal. The primary contention of the State is that, the respondents who are appointed on different dates as Hamalies (coolie workers) in the Mobile and Static Check Posts in the Department of Commercial Taxes on the condition that their appointments were purely 18 on temporary basis at the fixed rate of wages as fixed by the Government per day and their services can be terminated without any notice. That the respondents have accepted the conditions imposed in the appointment order and have reported for duties as Hamalies in the check post of the department. That the appointment of the respondents were neither covered under the provisions of the Cadre and Recruitment Rules of the Department, nor against any sanctioned posts who are paid as per Rule 7 and 55(2)(b) of the Manual of Contingency and Expenditure, 1958 (MCE). The State relies on the earlier petition filed by the persons similarly placed as that of the respondents in Application Nos.4462/2007 and 7500-7536/2011 and the said petitions have been rejected by the Tribunal as well as by this Court, it is not open for the present respondents to once again 19 approach the Tribunal and seek for regularization of their services.
14. It is relevant to note that, this Court by its Judgment dated 25.09.2013, while dismissing W.P.Nos.7222-7241/2012 has observed that, it is open to the petitioners to approach the authorities under the Minimum Wages Act for payment of minimum wages if their pay is less than minimum wage and it is open for the authorities to consider the said request and pass appropriate orders. It is relevant to note that, the said aspect of the matter has been noticed by the Tribunal at paragraph No.51.
15. The contention of the State that having regard to the earlier petition filed by similarly placed persons as that of the respondents which culminated in the order dated 25.09.2013 passed in W.P.Nos.7222-7241/2012 wherein the claim of such 20 similarly placed persons having been rejected, the claim of the present respondents ought not to be rejected, has been considered by the Tribunal at para 51 of its order wherein it has noticed that although in W.P.Nos.7222-7241/2021, this Court dismissed the writ petitions, the same would not come in the way of considering the claim of the present respondents as by virtue of the order dated 03.11.2003 passed in W.P.Nos.41420-41424/2003 wherein in the said case in respect of the petitioners who were similarly placed as that of the respondents in the present case, a direction was given to the State to consider their case for regularization and the said order has been confirmed by the Hon'ble Supreme Court by order dated 20.11.2006.
16. In any event, the case of the present respondents is required to be decided having regard 21 to the settled position of law as held by the Hon'ble Supreme Court.
17. In the case of Umadevi1, a Constitution Bench of the Hon'ble Supreme Court after considering various judgments with regard to regularization 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 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 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 22 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 regularization, if any already made, but not subjudice, 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."
18. The scope and manner in which the Constitution Bench Judgment of the Hon'ble Supreme Court in the case of Umadevi1 was required to be construed has been the subject matter of various Judgments of the Hon'ble Supreme Court which is noticed hereunder:
18.1. In the case of M.L.Kesari2, the Hon'ble Supreme Court at paragraph Nos.9, 10 and 11 has held as follows:
"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3)1, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and Tribunals and subject them 23 to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi (3)1, cases of several daily-
wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3)1, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six- month period mentioned in para 53 of Umadevi (3)1 has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or Tribunals. If any employer had held the one- time exercise in terms of para 53 of Umadevi (3)1, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3)1, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3)1, are so considered.
11. The object behind the said direction in para 53 of Umadevi (3)¹ is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or Tribunals, before the date of decision in Umadevi (3)1 was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad 24 hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3)1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure.
(Emphasis supplied) 18.2. In the case of Union of India and others Vs. Vartak Labour Union (2)11, the Hon'ble Supreme Court at paragraph No.17 has held as under:
"17. We are of the opinion that the respondent Union's claim for regularisation of its members merely because they have been working for the BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules."11
(2011) 4 SCC 200 25 18.3. In the case of Narendra Kumar Tiwari and others Vs. State of Jharkhan and others12, the Hon'ble Supreme Court at paragraph Nos.7, 8 and 9 has held as follows:
"7. The purpose and intent of the decision in Umadevi (3)2 was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who has been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointment for almost a decade after the decision in Umadevi (3)2 is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3)2 and Kesari3 sought to avoid.
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3)2, is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
9. The High court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise- the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and 12 (2018) 8 SCC 238 26 instead make appointments on an irregular basis. This is hardly good governance. "
(Emphasis supplied) 18.4. In the case of Sheo Narain Nagar5, the Hon'ble Supreme Court at paragraph Nos.7 & 8 has held as follows:
"7. When we consider the prevailing scenario, it is painful to note that the decision in Umadevi (3)4 has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily-wage basis, etc. in exploitative forms. This situation was not envisaged by Umadevi (3)4. The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Umadevi (3)4 has been ignored and conveniently overlooked by various State Governments/ authorities. We regretfully make the observation that Umadevi (3)4 has not been implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularising the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Articles 14, 16 read with Article 34(1) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India"8, from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits, etc. There is clear contravention of constitutional provisions and aspiration of downtrodden class. They do have equal rights 27 and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Umadevi (3)4. Thus, the time has come to stop the situation where Umadevi (3)4 can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Umadevi (3)4 laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not permissible when we consider the pith and substance of true spirit in Umadevi (3)4.
8. xxxxxxx
9. The High Court dismissed the writ application relying on the decision in Umadevi (3)4. 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 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 Umadevi (3)4. 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 regularised 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."
(Emphasis supplied) 18.5. In the case of Union of India and others Vs. Central Administrative Tribunal and others7, the Hon'ble Supreme Court after noticing the 28 Judgment in the case of Umadevi1, and various other Judgments including M.L.Kesari2 and Narendra Kumar Tiwari12 at paragraph Nos.20 and 21 has held as follows:
"20.The judgment of this Court in Umadevi (3)8 does not preclude the claims of employees who seek regularisation after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Umadevi (3)8. The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularisation to all such employees which are entitled according to the mandate under Umadevi (3)8 and ensure that the benefit is not conferred on a limited few. The subsequent regularisation of employees who have completed the requisite period of service is to be considered as a continuation of the one-time exercise.
21. xxxxx
22. The Court noted in the above judgment that if a strict and literal interpretation was given to the decision in Umadevi (3)8, no employee from the State of Jharkhand appointed on an irregular basis could ever be regularised as the State was formed on 15-11-2000 and the cut-off date had been fixed as 10-4-2006. The intent of the Court was to grant similarly-placed employees who had put the requisite years of service as mandated by Umadevi (3)8, the benefit of regularisation. The Court thus held that the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 ("the Regularsation Rules") must be interpreted in a pragmatic manner and employees of the State who had completed 10 years of service on the date of promulgation of the rules, ought to be regularised. In doing so, the Court ensured that employees in the State of Jharkhand who had completed the same years of service as employees from other States, are granted parity in terms of regularisation. The spirit of non- discrimination and equity runs through the 29 decisions in Umadevi (3)8, M.L. Kesari11 and Narendra Kumar Tiwari12."
(Emphasis supplied)
19. The underlying position that is forthcoming from the judgments of the Hon'ble Supreme Court as noticed in para 18 above are that having regard to the Constitution Bench judgment in the case of Umadevi1, the State was required to consider the cases of employees who have working as daily wager/ad-hoc/casual employees for more than ten years and the one-time exercise was required to be completed within six months. It is also noticed that the object of the direction in the case of Umadevi1 is to ensure that those who have put in work for more than ten years continuous service without protection of interim order by any Court, be considered for regularization in view of their long service and also to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily 30 wage/ad-hoc/casual basis for long periods. It has been held that, if the exercise of regularization within six months was undertaken only with regard to a limited few, that will not disentitle such employees, the right to be considered for regularization in terms of the judgment in the case of Umadevi1 and that consideration of such employees was required to be construed as part of the one-time exercise.
20. The case of the State that the respondents are not entitled to be regularized having regard to the dictum of the Hon'ble Supreme Court in the case of Umadevi1 is ex-facie liable to be rejected inasmuch as vide letter dated 15.11.2014 (Annexure-A27), the Commissioner of Commercial Taxes had written to the Additional Commissioner of Commercial Taxes and the Joint Commissioner of Commercial Taxes of various zones intimating that upon consideration of the representation of the Hamalies for regularization, the 31 State had clarified that the Hamalies working in the department of Commercial Taxes on part time basis cannot be regularized under the Karnataka Daily Wage Employees' Welfare Act, 2012 and hence, their request for regularization of service was not considered. Further, the wage of the Hamalies could be fixed under the Minimum Wages Act, 1948. However, the wages payable as per the Minimum Wages Act was subject to the fact that Hamalies should not be utilized for more than 4 hours per day and the wages should not exceed `122/- at the rate of `30 to `50 per day for maximum four hours.
21. In response to the said letter, the Additional Commissioner of Commercial Taxes vide letter dated 12.12.2014, (Annexure-A28) has categorically communicated that the Hamalies were appointed since 1984-85 and restricting utilizing their services for a period not exceeding four hours would 32 be difficult since the services/assistance of Hamalies played an important role in carrying out the physical verification of goods during vigilance activities of the officers of the department and sought for review of the communication sent to them. It was further communicated that the services of Hamalies could be utilized to the maximum time in vigilance activities as Group-D and Bill Collector posts in the division which were vacant.
22. It is clear from the aforesaid two communications dated 15.11.2014 and 12.12.2014 that the Hamalies were working at the Commercial Taxes Department and were rendering a full time job for more than 30 years. There is no material placed by the State to demonstrate that the cases of the respondents were considered for regularization consequent to the judgment in the case of Umadevi1. 33
23. The spirit of non-discrimination and equity which runs through the judgments of the Hon'ble Supreme Court in the case of Umadevi1, M.L. Kesari2 and Narendra Kumar Tiwari11 as noticed in the case of Union of India and Central Administrative Tribunal7 and having regard to the fact that the State having utilized the services of the Hamalies during the heydays of their life-time and at the present fag end of their lives ought not to be permitted to leave them in a destitute situation and the said action would clearly be exploitative to say the least which is impermissible having regard to the constitutional scheme as held in the case of Umadevi1 and interpreted in the subsequent judgments as noticed above.
24. Having regard to the above-mentioned and having regard to the fact that the Tribunal has considered the entire factual matrix of the matter and 34 noticed the legal position as also various notifications issued by the State and as well as considered the case of the respondents on the aspect of parity after noticing similarly placed persons whose services have been regularized, and in view of the factual and legal position as noticed above, the direction issued by the Tribunal to the state authorities is just and proper and we find no ground to interfere with the order of the Tribunal. Hence, the question framed for consideration is answered in the negative.
25. In view of the aforementioned, the writ petition is dismissed as being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE Svh/Naa