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2003 DIGILAW 50 (KAR)

B. C. RAMAKRISHNA v. STATE OF KARNATAKA

2003-01-16

K.RAMANNA, S.R.NAYAK

body2003
S. R. NAYAK, J. ( 1 ) THIS appeal is filed by the writ petitioner being aggrieved by the order of the learned Single Judge in W. P. No. 27208 of 1999, dated 2-12-1999 dismissing the writ petition. ( 2 ) IN the above writ petition, the appellant herein sought for a relief of regularisation of his service in the cadre of driver. From the materials placed before the Court, it could be seen that the appellant was appointed by the Agricultural Produce Market Committee, Bangalore, as a 'driver' on daily wage basis and he worked during 5 spells: for a period of 9 months with effect from 15-5-1986; for a period of 2 months with effect from 16-2-1987; for a period of 9 months with effect from 18-4- 1987; for a period of one year with effect from 22-1-1988 and for a period of one year with effect from 24-1-1989. It is stated that when the matter stood thus, the respondents sought to terminate the services of the appellant with effect from 23-1-1990. At that stage, the appellant herein preferred W. P. No. 1505 of 1990 and the learned Single Judge of this court granted an interim direction to continue the services of the appellant. The said writ petition was disposed of by the learned Single Judge on 19-1-1996 with a direction to the respondents to consider the case of the appellant for regularisation of his services in accordance with law. Accordingly, the State Government considered the claim of the appellant and by order dated 3-6-1999, the claim of the petitioner was rejected. In pursuance of the above Government order, the 3rd respondent issued endorsement dated 22/23-7-1999 dispensing with the services of the appellant. Being aggrieved by the said action of the Government and that of the respondent 3, the petitioner/appellant preferred the writ petition. Learned Single Judge refused to grant relief of regularisation to the petitioner/appellant by opining as under. "it is obvious that the period of service in pursuance of the interim order of this Court, cannot be taken into account for reckoning the total period of temporary service of the petitioner. If the said period is excluded, the period of temporary service of petitioner is only 3 years and 8 months. "it is obvious that the period of service in pursuance of the interim order of this Court, cannot be taken into account for reckoning the total period of temporary service of the petitioner. If the said period is excluded, the period of temporary service of petitioner is only 3 years and 8 months. The said period will not entitle him for any order of regularisation, particularly in view of the principles laid down in regard to the contract employments by agricultural Produce Market Committees by this Court in the case of Ganapati (supra)". ( 3 ) HOWEVER, while dismissing the writ petition learned Single Judge was pleased to observe that his order does not come in the way of respondent 3 in considering the case of the petitioner for continuation of temporary appointment, if such temporary service is required during any period. Hence, the present appeal is preferred by the unsatisfied writ petitioner. ( 4 ) WE have heard Sri S. V. Shastri, learned Counsel for the appellant and learned Counsel for the respondents. ( 5 ) SRI S. V. Shastri, with his usual persuasiveness strenuously contended that since the writ petitioner has had put in roughly 4 years of service and since the petitioner had been continued in service even after filing W. P. No. 1505 of 1990 till disposal of the same, learned Judge was not justified in refusing the relief. Sri S. V. Shastri would contend that the action of the respondents was not in conformity with the postulates article 14 of the Constitution and therefore, the action of the respondents in dispensing with the services of the petitioner after extracting work from him for a reasonably long period should not be regarded as fair and reasonable. On the other hand, learned Counsel for the respondents would support the order of the learned Single Judge. ( 6 ) SRI S. V. Shastri, learned Counsel for the appellant placed strong reliance on the Division Bench judgment of the Supreme Court in the case of Secretary, Haryana State Electricity Board v Suresh and Others. But, we do not think that that decision would come to the aid of the petitioner to seek regularisation of his services particularly in the light of the three Judges Bench decision of the Supreme Court in the case of ashwani Kumar and Others v State of Bihar and Others. But, we do not think that that decision would come to the aid of the petitioner to seek regularisation of his services particularly in the light of the three Judges Bench decision of the Supreme Court in the case of ashwani Kumar and Others v State of Bihar and Others. In that case, the Supreme Court specifically dealt with the question under what circumstances the Court would be justified in ordering regularisation of services of an ad hoc or temporary employee in the absence of any scheme framed by the employer for regularisation. ( 7 ) IT is well-settled law that regularisation is not a mode of recruitment. The petitioner is not seeking the relief of regularisation under any scheme framed by the respondents. The Apex Court in Ashwani Kumar's case, supra, speaking through Majmudar, J. , opined that in order to grant the relief of regularisation de hors a scheme for regularisation, two conditions regarded as conditions precedent should co-exist. They are. (1) appointment of the ad hoc employee should be against a clear vacancy in the sanctioned post; and (2) that appointment was in accordance with the Recruitment Rules governing the post. In such a case, the only flaw would be that the opportunity to apply to the post was not given to all eligible candidates as mentioned by Article 16 read with article 14 of the Constitution. The Supreme Court has further held that even in a case where the aforementioned two conditions are satisfied, no applicant as a matter of course or as a matter of right can seek mandamus to regularise his services. In such situation, whether the relief could or should be granted to an applicant would be within the domain of discretion of the Courts. In the premise of the aforementioned well-settled principles governing relief of regularisation, no relief can be granted to the appellant. It was not as if the appellant had been in continuous service without any break with effect from 15-5-1996 till his request for regularisation was turned down after this Court disposed of W. P. No. 1505 of 1990 on 19-9-1996. As could be seen from 5 spells of temporary services of the appellant as set out by the learned Single Judge in the order, the service of the petitioner was engaged in exigencies of the service during the different spells. As could be seen from 5 spells of temporary services of the appellant as set out by the learned Single Judge in the order, the service of the petitioner was engaged in exigencies of the service during the different spells. That fact itself would not vest a right in the appellant to seek mandamus to the respondent-authorities to regularise his services. Be that as it may, no satisfactory materials are placed before the Court to show that the two conditions laid down by apex Court in Ashwani Kumar's case, supra, are satisfied. Looking from any angle, the petitioner/appellant is not entitled to the relief sought by him. In that view of the matter, no exception can be taken to the order of the learned Single Judge. ( 8 ) THE writ appeal is devoid of merit and it is accordingly dismissed with no order as to costs. 20th January, 2003 order ON 'for BEING SPOKEN TO' no further order is necessary. Having heard the learned Counsel for the appellant, Sri S. V. Shastri, we do not find any necessity to modify our order already passed. The order passed on 16-1-2003 shall stand unaltered. However, learned Counsel would argue that the termination of services of his client was in breach of mandatory provisions of the industrial Disputes Act and that he could be permitted to work out the legal remedies if any, under the said Act. Such a liberty is reserved to the appellant/petitioner. --- *** --- .