Karnataka High Court
M G Ramappa Hegde vs Karnataka Industrial Areas ... on 11 June, 2013
Bench: K.L.Manjunath, L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JUNE 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
WRIT APPEAL NOS.1711 TO 1712 OF 2009 (S-PRO)
IN
WRIT PETITION NO.18075 OF 2007 (S-PRO)
BETWEEN :
1. M.G.RAMAPPA HEGDE
S/O M.L.GIDDAPPA HEGDE
AGE: 53 YEARS
NOW WORKING AS DEPUTY
DEVELOPMENT OFFICER
(IN CHARGE BASIS) AT
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
No.14/3, II FLOOR
RASTROTHANA PARISHAT BLDG.
NRUPATHUNGA ROAD
BANGALORE - 560 001
2. S.L.SHIVASWAMY
S/O H.C.LINGE GOWDA
AGE: 51 YEARS
WORKING AS ASST. ENGINEER
AT KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
ZONAL OFFICE, GANDHINAGAR
BANGALORE - 560 009 ... APPELLANTS
(BY SRI.P.S.RAJAGOPAL, SR. ADV. FOR P.S.RAJAGOPAL
ASSTS., ADVS.)
2
AND :
1. KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, A BODY
CONSTITUTED UNDER THE
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT ACT, 1966
HAVING ITS PRL. OFFICE AT
No.14/3, II FLOOR
RASTROTHANA PARISHAT BLDG.
NRUPATHUNGA ROAD
BANGALORE - 560 001
REP BY ITS EXECUTIVE MEMBER
AND CHIEF EXECUTIVE OFFICER
2. B.S.RAVI
WORKING AS DEPUTY DEVELOPMENT
OFFICER (INCHARGE)
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
BAIKAMPADY INDUSTRIAL AREA
MANGALORE - 575 011
D.K. DISTRICT
3. J.M.MOHAN KUMAR
ASST. ENGINEER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
HEAD OFFICE,
No.14/3, II FLOOR
RASTROTHANA PARISHAT BLDG.
NRUPATHUNGA ROAD
BANGALORE - 560 001
4. R.CHANDRASHEKAR
ASST. ENGINEER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
HEAD OFFICE,
No.14/3, II FLOOR
RASTROTHANA PARISHAT BLDG.
3
NRUPATHUNGA ROAD
BANGALORE - 560 001
5. V.T.ASHOK
ASST. ENGINEER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
BAIKAMPADY INDUSTRIAL AREA
MANGALORE - 575 011
D.K. DISTRICT
6. JAYENDRA
ASST. ENGINEER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
METAGAHALLI INDUSTRIAL AREA
MYSORE - 570 016 ... RESPONDENTS
(SRI.M.S.BHAGWAT, ADV. FOR C/R3
SRI.NANJUNDA REDDY, SR. COUNSEL FOR SRI.P.V.
CHANDRASHEKAR, ADV. FOR R1
SRI.GOUTAM AND RAJESHWAR, ADVS. FOR R4 TO R6
R2 - SERVED)
---
These appeals are filed under section 4 of the
Karnataka High Court Act praying to set aside the order
dated passed in WP No.18075/2007 dated 22.4.2009.
These appeals coming on for Hearing this day,
K.L.MANJUNATH J., delivered the following:
JUDGMENT
The legality and correctness of the order passed by the learned Single Judge in WP No.18075/2007 dated 22.4.2009 is called in question in these appeals. 4
2. Heard Sri.P.S.Rajagopal, learned Sr. counsel appearing for the appellant, Sri. M.S.Bhagwat, learned counsel appearing for respondent No.3, Sri.Nanjunda Reddy, learned Sr. counsel for Sri.P.V.Chandrashekar appearing for respondent No.1 and Sri.Rajeshwar, learned counsel appearing for respondent Nos.4 to 6.
3. The facts leading to these appeals are as under:
Appellants and respondent Nos.2 to 6 were working in Karnataka Industrial Areas Development Board (hereinafter referred to as 'the Board' for short) on daily wages. Later, they were working as monthly rated employees. The 3rd respondent Mohan Kumar was a diploma holder. He had joined on daily wages as Junior Engineer on 24.8.1983. The appellant No.1 Ramappa Hegde joined the Board as an Assistant Engineer since he was B.E. graduate. Similarly, the 2nd appellant Shivaswamy is also a B.E. graduate and working as an Assistant Engineer w.e.f. 1.11.1985. Later J.M.Mohan Kumar also passed B.E. and acquired the Degree on 5 26.7.1995. Earlier, the appellants and the remaining respondents were not regularized. Subsequently, they were all regularized by the Board by its order dated 16.1.1997. By that time, 3rd respondent Mohan Kumar was also working as Assistant Engineer on daily wages.
The actual dispute arose after this regularisation of services as Assistant Engineer, in regard to fixation of seniority of the parties.
4. On an earlier occasion, seniority was fixed by the Board placing Mohan Kumar above the appellants herein which was challenged by the appellants herein in WP No.25718/2005 which petition came to be allowed on 26.9.2006 directing the Board to consider the objections of the appellants and re-do the list. Thereafter, seniority list has been prepared by showing Mohan Kumar as Assistant Engineer placing him above the appellants herein. Therefore, the appellants filed the writ petition in question to quash the order of regularisation dated 7.1.1997 in so far as it relates to 6 Mohan Kumar and also to quash the seniority list dated 4.8.2007 in so far as it is concerned to respondent Nos.2 to 6 at Sl.Nos.22 to 26 and place the petitioners therein at Sl.Nos.22 and 23 and show respondent Nos.2 to 6 below them.
5. The writ petition was heard by the learned Single Judge. The learned Single Judge has dismissed the writ petition on the ground that in view of the regularisation of the services of all the appellants and the contesting respondents dated 16.1.1997, no error is committed by the Board in placing the respondents above the appellants.
6. Being aggrieved by the order of the learned Single Judge, the present appeal is filed.
7. At the outset, learned Sr. counsel appearing for the appellants Sri.P.S.Rajagopal contends that appellants do not press prayer (a) in the writ petition and he requests the Court only to consider the 7 challenge made by the appellants to the seniority list prepared by the Board in so far as it relates to seniority of the contesting respondents.
8. The main contention of the learned Senior counsel appearing for the appellants is that pursuant to the judgment of the Hon'ble Supreme Court in 'DHARWAD DISTRICT PUBLIC WORKS DEPARTMENT LITERATE DAILY WAGE EMPLOYEES ASSOCIATION & ORS. v. STATE OF KARNATAKA' reported in (1990) 2 SCC 396, Scheme has been framed by the State of Karnataka in regard to the regularisation, fixation of seniority, salary and all other benefits in regard to employment of the daily rated employees or monthly rated employees. According to him, Clause 8(e) of the Scheme has not been followed by the Board while fixing the inter se seniority of the appellants and respondents concerned. He further submits that the learned Single Judge, without considering Clause 8(e) has dismissed the writ petition erroneously. Therefore, he requests the 8 Court to set aside the order of the learned Single Judge and also quash the seniority list prepared by the Board by issuing a suitable direction to re-consider the case of all the parties following Clause 8(e) of the regularisation scheme dated 6.8.1990 gazetted on 29.8.1990.
9. Sri.M.S.Bhagwat, learned counsel for the respondent No.3 submits that the learned Single Judge, considering the judgment of the Hon'ble Apex Court, has rightly dismissed the writ petition because while regularizing the services of the appellants and contesting respondents, the Board has taken into consideration the length of service put in by each of the employees and accordingly, the services were regularized and based on the same seniority list has been prepared. Therefore, he contends that when the order of regularisation of all the employees are not questioned within the reasonable time, the appellants cannot be permitted to contend that they are to be placed above the contesting respondents. In the 9 circumstances, he requests the Court to dismiss the appeal.
10. On the contrary, learned counsel appearing for respondent Nos.4 to 6 supporting the arguments of the learned Sr. counsel appearing for the appellants submits that even the objections filed by the respondent Nos. 4 to 6 for preparation of seniority list has not been considered by the Board and he further contends that an error is committed by the Board by placing 3rd respondent above respondent Nos.4 to 6.
11. Having heard the learned counsel for the parties, the points to be considered are:
(1) Whether the seniority list has to be prepared based on the order of regularisation showing the names while regularizing the services of appellants and respondents in order to consider their seniority?10
(2) Whether the scheme prepared by the State of Karnataka dated 6.8.1990 Annexure-V has to be considered or not?
(3) Whether the learned Single Judge has committed an error in order to interfere with the same?
12. Having heard the learned counsel for the parties, the following facts are not in dispute in these appeals:
That the 3rd respondent Mohan Kumar was appointed earlier to the appellants herein. He was only a diploma holder. He was appointed on 24.8.1983. He was working as Junior Engineer on daily wages. Later he was converted on monthly consolidated wages and wages were paid as applicable to the Junior Engineer. Similarly, 1st appellant was appointed on 1.6.1995 on daily wages against the post of Asst. Engineer since he was a qualified B.E. Graduate and he was being paid daily wages against the post attached to the Asst. 11 Engineer and later he was paid a consolidated monthly salary applicable to the Asst. Engineer. Similarly, 2nd appellant Shivaswamy was appointed on daily wages as an Asst. Engineer w.e.f. 1.11.1985 since he was also a B.E. Graduate. It is also not in dispute that 3rd respondent Mohan Kumar, on acquiring the B.E. Degree was re-designated as Asst. Engineer on 26.7.1995. Similarly, respondent Nos.2, 4 and 6 were appointed and working as Asst. Engineers since they had acquired B.E. Degree on the date of their appointment.
13. It is also not in dispute that the services of all these persons were regularized by the Board by its resolution dated 7.1.1997. It is not the case of the parties herein that their services were regularized and seniority was fixed from the date 7.1.1997 but the question of seniority was left over. It is also not in dispute that the seniority has been fixed by the Board on 4.8.2007. While fixing the seniority, the Board, considering the appellants as well as the contesting 12 respondents including the 3rd respondent Mohan Kumar as B.E. Graduates and without taking into consideration the order of appointment of Mohan Kumar on daily wage basis as Junior Engineer, placed him above all these persons as if he was working as an Asst. Engineer w.e.f. 24.8.1983. While fixing the seniority, scheme referred to above in Annexure-V has not been considered and followed by the Board.
14. In this background, what is to be considered by us is whether Annexure-V, the scheme formulated by the Government has to be considered in order to fix the inter se seniority of the appellants and contesting respondents. The learned Single Judge, though has referred to the scheme in question, has not given any finding whether the said scheme has to be followed in order to fix the inter se seniorities of these persons. On perusal of Clause 8(e) of the scheme, we are of the view that seniority has to be arrived with reference to total consecutive calendar years of work as casual or daily 13 rated employees taking into account only the years in which a minimum of 240 days work is done, seniority inter se of equals being determined on the basis of age, the person senior in age being considered senior in the MRE.
15. Admittedly, respondent No.3, though had joined the services w.e.f. 24.8.1983, he was not working as an Asst. Engineer. But, he was working as a Junior Engineer on daily wages. He was brought into the monthly wage basis as an Asst. Engineer only w.e.f. 26.7.1995 but the appellants and the remaining respondents were working prior to 26.7.1995 as Asst. Engineers, since by the time they were appointed they had acquired B.E. qualification. This crucial point has not been considered not only by the Board but also by the learned Single Judge while determining the seniority of these persons.
16. Therefore, we are of the opinion that the seniority list prepared by the Board which has been 14 confirmed by the learned Single Judge, has to be re- considered. Matter requires re-consideration by the Board afresh taking into consideration the scheme formulated by the Government and after considering the objections of the parties and after hearing all the parties including the 3rd respondent in accordance with law.
Accordingly, these appeals are allowed.
Sd/-
JUDGE Sd/-
JUDGE RV