Karnataka High Court
M/S Karnataka State Pollution vs M/S Karnataka State Pollution on 21 August, 2012
Author: Subhash B.Adi
Bench: Subhash B. Adi
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B. ADI
WRIT PETITION NOS.27983-27984/2012(S-REG)
C/W
WRIT PETITION NO. 38300/2010(S-RES)
BETWEEN :
M/S KARNATAKA STATE POLLUTION
CONTROL BOARD CONTRACT EMPLOYEES
ASSOCIATION ( REGD)
(REGISTRATION NO. DTR/CR-13/2010)
REPRESENTED BY ITS
1. GENERAL SECRETARY
SRI. PRAKASH C V
AGED ABOUT 33 YEARS,
S/O LATE VENKATESH,
2 PRESIDENT
SRI S.C. SASI KUMAR,
AGED ABOUT 35 YEARS,
S/O LATE CHANDRASHEKAR,
NO. 106, CENTRAL EXCISE LAYOUT
8TH MAIN ROAD, VIJAYANAGARA,
BANGALORE- 560 040.
...PETITIONER
(COMMON IN BOTH THE
PETITIONS)
( BY SRI.C SHANKAR REDDY, ADV. IN W.P.NO.27983-984/2012
2
BY SRI.C SHANKAR REDDY, FOR
SRI. S.CHENNARAYA REDDY, ADV., IN W.P.NO.38300/2010)
AND :
1 M/S KARNATAKA STATE POLLUTION
CONTROL BOARD "PARISARA BHAVANA"
1ST TO 5TH FLOOR, NO. 49,
CHURCH STREET, BANGALURU-560 001
REPRESENTED BY ITS
MEMBER SECRETARY
2 THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
ECOLOGY AND ENVIRONMENT,
M S BUILDING, DR B R AMBEDKAR
VEEDHI, BENGALURU- 560 001
...RESPONDENTS
(IN W.P.NOS.27983-
27984/2012)
( BY SRI. AJAY KUMAR PATIL, ADV. FOR R-1;
SRI.RAGHAVENDRA G.GAYATHRI, HCGP FOR R-2)
AND :
1 M/S KARNATAKA STATE POLLUTION
CONTROL BOARD "PARISARA BHAVANA"
1ST TO 5TH FLOOR, NO. 49,
CHURCH STREET, BANGALURU-560 001
REPRESENTED BY ITS
MEMBER SECRETARY
2 THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
ECOLOGY AND ENVIRONMENT,
M S BUILDING, DR B R AMBEDKAR
3
VEEDHI, BENGALURU- 560 001
3 THE KARNATAKA EXAMINATION
AUTHORITY, 18TH CROSS,
MALLESWARAM
BANGALORE - 560 003
REPTD. BY TIS EXECUTIVE DIRECTOR
4 MOHAMMED MIRZA
AMEENULLA BAIG
AGED ABOUT 41 YEARS
SON OF AZEEZULLA BAIG
WORKING AS ASSISTANT
ENVIRONMENTAL OFFICER,
KARNATAKA STATE POLLUTION
CONTROL BOARD, NISARGA BHAVAN
3RD FLOOR, THIMMAIAH ROAD,
BANGALORE - 560 002
5 KUM.CHITRALEKHA
AGED ABOUT 32 YEARS
D/O DR.LINGAIAH
WORKING AS ASSISTANT ENVIRONMENTAL
OFFICER AT HEAD OFFICE, KARNATAKA
STATE POLLUTION CONTROL BOARD
PARISARA BHAVAN, 3RD FLOOR,
CHURCH STREET,
BANGALORE - 560 001
6 K.B.KUMARASWAMY
AGED ABOUT 41 YEARS
S/O BASAVARAJAIAH
WORKING AS ASSISTANT DATA ENTRY
OPERATOR AT KARNATAKA STATE POLLUTION
CONTROL BOARD, REGIONGAL OFFICER, TUMKUR
TUMKUR DISTRICT - 572 103
7 V.MANJUNATHA
AGED ABOUT 36 YEARS
4
S/O M.VENKATESH
WORKING AS ASSISTANT DATA ENTRY OPERATOR
KARNATAKA STATE POLLUTION CONTROL BOARD
NO.49, PARISARA BHAVAN
CHRUCH STREET,
BANGALORE - 560 001
8 MS.R.GEETHA
AGED ABOUT 44 YEARS
W/O M.N.NARASIMHARAJU
WORKING AS ASSISTANT DATA ENTRY OPERATOR
KARNATAKA STATE POLLUTION CONTROL BOARD
NO.49, PARISARA BHAVAN
CHURCH STREET,
BANGALORE - 560 001
9. B.JAYAPRAKASH
AGED ABOUT 36 YEARS
S/O LATE N.BHEEMRAO
WORKING AS SCIENTIFIC ASSISTANT
KARNATAKA STATE POLLUTION CONTROL BOARD
NO.49, PARISARA BHAVAN
CHRUCH STREET,
BANGALORE - 560 001
....RESPONDENTS
(IN W.P.No.38300/2010)
( BY SRI. AJAY KUMAR PATIL, ADV. FOR R-1;
SRI.RAGHAVENDRA G.GAYATHRI, HCGP FOR R-2& R-3;
SRI. M.N.PRASANNA FOR SRI. P.S.RAJAGOPAL, ADV.
FOR R-4 TO R-9)
WRIT PETITION NOS.27983-984/2012 ARE FILED
UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF
INDIA, PRAYING TO QUASH THE PROCEEDINGS OF THE
GOVERNMENT OF KARNATAKA FOR REGULARIZATION OF THE
PETITIONER'S EMPLOYEES MADE AS PER ORDER DATED
5
17.7.2012, VIDE ANNEXURE-X & ETC.,
WRIT PETITION NO.38300/2010 IS FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO DIRECTI THE RESPONDENTS NOT TO COMPLETE
THE RECRUITMENT BY THE R1 BOARD BY CONSIDERING THE
APPLICATIONS RECEIVED IN RESPONSE TO THE R1
NOTIFICATION DT.6.10.10 WHICH WAS PUBLISHED IN VIJAYA
KARNATAKA KANNADA DAILY DT.6.10.10 AS PER ANN-N TILL
THE OCNSIDERATIONOF THE CLAIM SO THAT THE 107
CONTRACT EMPLOYEES OF THE R1 TO THE POSTS WHICH
THEY HELD WITH THE R1 IS DECIDED BY THE RESPONDENTS
BY REGULARIZING THEIR SERVICES WITH THE R1 BOARD &
ETC.,
THESE PETITIONS COMING ON FOR DICTATING
ORDERS/ ORDERS THIS DAY,THE COURT MADE THE
FOLLOWING:
ORDER
Learned Government Pleader is directed to take notice for respondent No.2 in W.P. Nos.27983-27984 of 2012.
2. Sri Ajay Kumar Patil, learned counsel is directed to take notice for respondent No.1 in W.P. Nos.27983-27984 of 2012.
3. Petitioners in these writ petitions have called in 6 question the Government order dated 17.07.2012 produced at Annexure `X`, wherein the request of the petitioners for regularization of their services has been rejected.
4. Petitioner in W.P. No.38300/2010 is an association of contract employees of the first respondent - M/s. Karnataka State Pollution Control Board (for short, `the Board`). This Association has sought for mandamus directing the respondents therein not to complete the recruitment by the Board by considering the applications received in response to the notification published in `Vijaya Karnataka` daily news paper on 06.10.2010 till the claim of 107 contract employees of the first respondent for regularization is decided and for a direction to the first respondent to regularize the services of the members of the petitioner- association by absorbing them into service and to grant all the benefits that are available to the regular employees employed by the first respondent. 7
5. It is not in dispute that the request for regularization of the contract employees of the first respondent - Board is now negatived by the order impugned in the connected writ petition Nos.27983-27984 of 2012.
6. Since the issue involved in these petitions being common, they are taken up together for disposal.
7. The brief facts as stated by the petitioners is as under:
There were about 107 contract employees working in the first respondent - Board in groups `C` and `D` cadres. They have put in about more than ten years of continuous service as contract employees against the regular vacancies. However, they are not getting the benefits like housing allowance, pension etc., as their services were not regularized by the Board.8
The contract employees made a representation to the first respondent - Board for regularization of their services.
The Board passed a resolution on 06.01.2010 to recommend the same to the State Government for regularisation of the services of the contract employees. In this regard, a legal opinion was also sought for and the Advisory Committee empowered the Chairman of the Board to take the decision in the matter of regularization of the services of the contract employees with a strong recommendation to the State Government.
It is stated that, all the contract employees fulfilled the necessary criteria for regularization of their services, namely, the criteria specified in the judgement of the Apex Court reported in AIR 2010 SC 2587 in the matter of STATE OF KARNATAKA AND OTHERS Vs. M.L. KESARI AND OTHERS as per Para No.5 therein.9
Though the Board had passed the resolution on 06.01.2010 and also made recommendation for regularization of the services of the contract employees, however, the Board issued a notification dated 06.10.2010 inter alia calling for applications in respect of the posts for which these contract employees were working. As such, the Association of the contract employees aggrieved by the said notification, filed writ petition in W.P. No.38300/2010 for stopping the process of recruitment in pursuance of the notification dated 06.10.2010.
This Court, by interim order dated 23.02.2011, noticed that some of the contract employees had made applications for recruitment in pursuance of the notification dated 06.10.2010 and some had not made application and the State Government had also passed an order dated 12.11.2009 inter alia granting approval for extension of weightage at 4% of marks for each satisfactorily completed year of service rounded up to next integer and age relaxation 10 extended by the Government order dated 05.08.2002 as amended from time to time to those employees working on contract basis as on the date of notification issued for recruitment, who have not availed the said benefit earlier and the benefit shall be applicable to all the categories of posts advertised on one time basis against which they are working. The Government also ordered that in case the total percentage after adding the weightage exceeded 100%, then it shall be limited to one hundred percent. Having regard to the Government order extending the weightage for the contract employees, this Court permitted the contract employees working in the Board to make applications, if they had not already made and such applications would be considered by the Board keeping in mind the Government order dated 12.11.2012 extending the weightage.
This Court had also observed that though the contract employees did not qualify to apply to the respective posts advertised as per the notification dated 06.10.2010 in view 11 of the amended Cadre and Recruitment Rules, and directed the Board to consider the cases of contract employees, who had applied treating their applications as having been made under the Cadre and Recruitment Rules of 1992 (for short, `the Rules of 1992`), so as to avoid any prejudice that would be caused to the contract employees, who have made an application for direct recruitment and were not qualified under the amended Cadre and Recruitment Rules of the respondent - Board.
In Writ Petition No.38300/2010, the relief sought for by the petitioner is to stay the recruitment proceedings till their request for regularization of service is considered and disposed of by the State. The main grievance of the petitioner - association in said writ petitions is that their case for regularization be considered before the recruitment process is begun. if the process of recruitment continues, the very purpose for which, their request for regularization has been recommended by the Board to the State, could be 12 frustrated and they would be denied of the said benefit.
8. Having regard to these circumstances, it is appropriate to answer the question as to, "Whether the contract employees employed by the Board are entitled for regularization as claimed by them ?"
9. The impugned order dated 17.06.2012 produced at Annexure `X` in W.P. Nos.27983 and 27984 of 2012 becomes relevant for consideration.
10. The State Government, by the said impugned order has considered the grievance of these contract employees in the light of the decision of the Apex Court in M.L. KESARI`s case referred supra and has found that from amongst 107 contract employees, only three employees have completed 10 years of continuous service as on 10.04.2006 and the remaining employees have not 13 completed 10 years of service as on the said day and accordingly, by the said impugned order, services of three employees, namely, (1). Sri Rudrappa Kamatar (2). Sri H.T. Srinivasa and (3) Sri T. Shivanna have been regularized.
11. The entire case of the petitioner is based on the decision of the Apex Court in M.L. KESARI`s case. It is appropriate to refer to the said decision. The Apex Court, having regard to the principles enunciated in the judgement reported in 2006 AIR SCW 1991 in the matter of SECRETARY, STATE OF KARNATAKA AND OTHERS Vs. UMADEVI AND OTHERS, held that, as one time measure, an option was given to the State government to regularise the services of the employees, who had worked for 10 years or more in a duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than 10 years. Such 14 appointment is not illegal, and the employee is qualified to be appointed to be considered for regularisation as a one time measure.
12. Now, by the impugned order as per Annexure `X` in W.P Nos.27983 and 27984 of 2012, the Government finds that out of 107 employees presently working on contract basis in the Karnataka State Pollution Control Board, only three employees have completed 10 years of continuous service as on 10.04.2006 and their case for regularization was considered as per the decision of the Apex Court in M.L. KESARI`s case.
13. Learned counsel for the petitioner - Association submitted that, these contract employees have been working against sanctioned posts. All of them were qualified to be appointed to the respective posts as per the Rules of 1992 and have completed necessary period of service for regularization and their cases also come within the norms 15 specified by the Apex Court both in UMADEVI`s case as well as M.L. KESARI`s case.
14. In M.L. KESARI`s case, the Apex Court has only reiterated the principles enunciated in UMADEVI`s case. However, the benefit is extended, which was otherwise one- time measure in UMADEVI`s case by observing that the employees, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of the judgment in UMADEVI`s case (AIR 2006 SC 1806) = (para 44 in 2006(4 ) SCC 1) has expired. The one-time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.04.2006, 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 the judgement in UMADEVI`s case, but did not consider the cases of some employees, who were 16 entitled to the said benefit, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise would be concluded only when all the employees who are entitled to be considered in terms of Para 53 of the judgement in UMADEVI`s case, are so considered. Hence, it is clear that one-time consideration is not limited to six months from the date of decision in UMADEVI`s case, but one-time consideration means consideration of the grievance of all the employees, who are entitled for regularization in terms of para 53 of the judgment in UMADEVI`s case, till it is so considered by the employer.
15. The criteria to be fulfilled by the employee, who has been engaged either on adhoc or daily wages, for consideration of his / her case for regularization is that he / she should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal. In case, where the 17 person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, though such appointment may be irregular, employee concerned is entitled for consideration and he must have completed 10 years of continuous service as on 10.04.2006.
16. Now, the impugned order dated 17.06.2012 produced at Annexure `X` specifically states that out of 107 contract employees, only three employees have completed 10 years of continuous service as on 10.04.2006. Admittedly, completion of 10 years of continuous service as on 10.04.2006 is one of the main criteria to be fulfilled by the contract employees / daily wagers. If the said condition is not fulfilled, the consideration of other condition may not arise.
17. Petitioner - Association has not at all produced any 18 material to show that other than three contract employees mentioned in Annexure `X`, the other employees have also completed the continuous service of 10 years as on 10.04.2006. Thus, there is no ground on which the Government can regularize the services of the remaining contract employees. Though they might have put in number of continuous years of service, they have not completed minimum of 10 years of service as on 10.04.2006. Hence, their case do not fall under the norms stated in M.L.KESRI'S case.
18. The other circumstance was that from amongst 107 contract employees, some of them have already made an application for direct recruitment and the Government by its order dated 12.11.2009 referred to in the interim order passed by this Court dated 23.02.2011, has extended the benefit of weightage of four percent of marks for each satisfactorily completed year of service rounded up to next integer.
19
19. During the pendency of this writ petition, this Court by interim order has permitted those employees, who had not made application in response to the notification dated 06.10.2010, to make an application for direct recruitment and further observed that the qualification prescribed under the Rules of 1992 be considered as the requisite qualification. Having regard to the continuous service put in by the contract employees and the previous qualification prescribed and having regard to the vacancies, against which they were engaged on contract basis, this Court also made an observation that in respect of the contract employees, who have applied for direct recruitment in response to the notification dated 06.10.2010, their applications shall treated as having been made under the Rules of 1992.
20. Learned counsel appearing for the petitioner - Association submitted that, the weightage given as per the Government order dated 12.11.2009 should not be confined 20 to the posts in which the contract employees were working, but also in respect of all the posts to which they apply. The weightage should be extended irrespective of the posts for which they have applied or in which they were working. The said benefit should be continued not only once, but also for the future recruitment. He also contended that as far as the qualification for recruitment as per the notification dated 06.10.2010 or for any subsequent recruitment, it should be only according to the qualification prescribed under the Rules of 1992.
21. Learned Government Pleader submitted that, first of all, qualification prescribed in notification dated 06.10.2010 cannot be altered and if the recruitment is to be made in pursuance of the notification dated 06.10.2010, necessarily, the applicant must fulfill the requisite qualification as per the Cadre and Recruitment Rules of 2010 (for short, `the Rules of 2010`) and not the Rules of 1992. But, he does not deny that this Court has permitted the 21 contract employees to make applications and had directed the Board to treat the said application as having been made under the Rules of 1992. He also submitted that the Government has extended the benefit of wieghtage of four percent marks to the contract employees as one-time measure and it cannot be made available for all the future recruitment.
22. Learned counsel for the first respondent - Board also submitted that he has no objection to consider the case of the contract employees by giving weightage as per the Government order dated 12.11.2009. However, he submitted that it is only an one-time measure. The Board has no jurisdiction to extend the benefit for subsequent period. He also submitted that since this Court by the interim order had directed the Board to treat the applications made by the contract employees as having been made under the Cadre and Recruitment Rules of 1992, the same will be considered under the recruitment Rules of 1992. 22
23. No doubt, the recruitments are required to be made in accordance with the qualification as prescribed under the Cadre and Recruitment Rules prevailing as on the date of the issue of the notification. But, in so far as the contract employees in these writ petitions are concerned, it is not in dispute that they have been working for several years and they might not have completed 10 years of continuous service as on 10.04.2006. However, at the time when they were recruited, they were all qualified for the respective posts. But for the shortage of length of service as on 10.04.2006, some of them became ineligible for regularization. At the same time, the very same posts have been advertised for direct recruitment. If they were all qualified when they were recruited and have been working in the said posts, their experience itself could be treated as a qualification. It is in this regard, this Court, having noticed that only some of the contract employees had made applications in response to the notification dated 06.10.2010, permitted the other contract employees, who had not made 23 applications to make applications and directed the Board to treat the same as having been made under the Rules of 1992 and not under the Rules of 2010.
24. In my opinion, though the order dated 23.02.2011 is an interim order, it is passed by this Court keeping in mind the fact that the contract employees have been continuously engaged by the Board against clear vacancies and they were all qualified. Treating the said qualification as requisite qualification, their applications have been directed to be considered. In my opinion, applications of these contract employees have to be treated as having made in conformity with the qualification prescribed under the Rules of 1992.
25. Learned counsel appearing for the Board also fairly submitted that, all the applications of the contract employees have been considered under the Rules of 1992. He had also filed details of the contract employees to be benefitted from the weightage along with a memo. He also 24 submitted that except for the post of Field Assistant, in respect of other posts, the qualification, which was prescribed under 2010 Rules is the same qualification, which is prescribed under 1992 Rules. There may not be any difficulty in considering the applications of all the contract employees, who have made application for direct recruitment.
26. Apart from this, even for the post of Field Assistant also, applications of the contract employees have been considered in terms of the qualification prescribed under the Rules of 1992. Apart from considering them under the Rules of 1992, they have been benefitted by the weightage as per the Government order dated 12.11.2009. In my opinion, this statement of the Board clearly satisfies the grievance of the petitioner for consideration of their case under the Rules of 1992. Even other wise, having regard to the special circumstances and these employees were appointed on the bases of the qualification as prescribed 25 then i.e., in 1992, hence they deserve special consideration.
27. As far as extension of the weightage as per the Government Order dated 12.11.2009 for the subsequent recruitments is concerned, both the learned Government Pleader and the learned counsel for the Board submitted that the said extension of weightage would not only be contrary to the Government order, but it would jeopardise the future recruitment. Such consideration would be voilative of Articles 14 and 16 of the Constitution.
28. As far as the contention of the learned counsel for the petitioner that the weightage given under the Government order dated 12.11.2009 should also be available for any other post, there is no merit in this contention as the purpose of giving weightage was to respect the length of service rendered by such employees in the concerned post, considering their experience in the said post, the weightage is sought to be given. The Government orders dated 26 12.11.2009 and 05.08.2002 were all made for the benefit of the contract employees and to see that as far as possible, their interest is protected. But, it does not mean that the weightage given to a particular post can be extended to any other post, for which, the contract employees has no experience, nor such benefit could be extended from time to time.
29. The Government Order dated 12.11.2009 itself speaks that it is a one-time measure and even according to the judgement of the Apex Court in UMADEVI`s case, if the daily wages / adhoc / contract employees are qualified and fulfill the norms prescribed therein for regularization, their case shall be considered as a one-time measure. The Apex Court reconsidered the judgement in UMADEVI`s case in so far as the norms prescribed therein are concerned and held that one-time measure would be concluded only when all the employees who are entitled to be considered in terms of Para 53 of the judgement in UMADEVI`s case. Once cases of such 27 employees are considered and given benefit of weightage and also qualification, I do not think there can be any justification to extend the said benefit again and again. If they do not qualify despite giving of such benefit, it cannot be said that such weightage and benefit should be extended till they are selected.
30. Since in this case, the Board stated that it would extend the benefit of weightage as per the Government Order dated 12.11.2009 and the applications of the contract employees would be considered as if made under the Rules of 1992 and if the selection is made by considering those two criteria, one-time consideration stands fulfilled.
31. Apart from this, the learned counsel for the Board also made submission that even if the contract employees, who have made applications for direct recruitment are not selected, they will not be disturbed from their services as contract employees and they would be continued. This 28 submission is also placed on record.
32. Having regard to these circumstances, I pass the following Order:-
(1) The contract employees except three, namely,(1) Sri Rudrappa Kamatar (2) Sri H.T. Srinivasa and (3) Sri T. Shivanna, Second Division Assistants, all others are not entitled for regularization in terms of the Government Order dated 17.06/07.2012.
(2) In respect of the contract employees, who have made applications in response to the notification dated 06.10.2010 and who have made applications in pursuance of the interim order dated 23.02.2011 in W.P. No.38300/2010, their applications shall be considered in terms of the qualification prescribed under the Cadre and Recruitment Rules of 1992 and (3) The weightage as prescribed by the Government under the Government Order dated 12.11.2009 be given to such applicants, who have made application for direct 29 recruitment.
(4) If the applicants, who had applied for direct recruitment, and who have been selected and appointment orders have been issued, the same is not disturbed. It is only in respect of the contract employees, whose applications are yet to be decided, the recruitment authority shall dispose of the applications in terms of the above observations. In respect of the contract employees, whose selection process is completed in terms of the above observations, the appointment orders be issued forthwith. (5) The Board is at liberty to fix the seniority of the applicants, who have been selected taking in to consideration merit and other criteria.
Hence, Writ Petition Nos.27983-27984 of 2012 stand dismissed. Writ Petition No.38300/2010 stand disposed of in terms of the above order.
Sd/-
JUDGE sma