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2012 DIGILAW 680 (KAR)

M. L Seehta v. Krishna

2012-08-17

SUBHASH B.ADI

body2012
Judgment 1. Learned Government Pleader is directed to take notice for respondents in W.P. Nos.16779-16785 of 2012. 2. The Government by issuing an advertisement inviting the applications from the qualified candidates, has appointed these petitioners for the purpose of supervision of the Libraries established at various Grama Panchayats. These petitioners claim that they have been appointed as Library Supervisors and are working for several years. However, their services have not been regularized. 3. The Government had issued a circular dated 02.01.2001 prescribing certain guidelines in the matter of appointing Library Supervisors on honorarium. Initially, these petitioners were paid Rs.300/-per month, which was increased to Rs.500/-, further, increased from: Rs.500/-to Rs.750/-; Rs.750/-to Rs.1,000/-; Rs.1,000/-to Rs.1,500/-and now, they are being paid Rs.2,500/-per month. 4. Some of the petitioners claim to have been working for more than 10 years continuously and some of them for more than 5 years. It is also stated that they work for eight hours a day. However, due to shortage of power supply, they are working for seven hours a day. The duties and responsibilities of these persons are on par with the Assistant Librarians appointed in the Government Library. However, the Grama Panchayat and State have not taken any step to regularize the services of these petitioners as against the posts for which they have been engaged, nor they have been paid similar scale of pay, though the Grama Panchayat extract the work for eight hours a day. 5. The State Government to create awarness and to enhance the knowledge at village level, had formulated scheme for establishing the library at every Grama Panchayath level. It is in pursuance of this scheme, the petitioners and several other persons, were appointed as Library Supervisors. These posts have been created under the scheme and some of the petitioners claim to have been working for more than ten years and some of them have worked for more than five years, they allege that, despite of making several representations, the Government has not considered their representation, to regularize the services of these petitioners and others, in the respective post. 6. 6. Learned counsel for the petitioners submitted that, the Apex Court in the judgment reported in 2006 (4) SCC 1 in the matter of SECRETARY, STATE OF KARNATAKA AND OTHERS Versus UMA DEVI AND OTHERS has given one time benefit to the persons, who have worked for more than 10 years continuously as on cut-off date for regularization of their services. Even though some of the petitioners have completed 10 years of service as Library Supervisor, their services have not been regularised. He also relied on the judgment reported in AIR 2010 SC 2587 in the matter of STATE OF KARNATAKA AND OTHERS Versus M.L. KESARI AND OTHERS, and submitted that, the Apex Court, considering the judgment in UMA DEVI’s case, had formulated the norms for regularisation of the services of the daily wagers, who have been working for more than 10 years. He further submitted that the Grama Panchayat has been collecting cess towards libraries and in this regard, an amount of Rs.60 Crores has been collected in the State. Despite the same, these petitioners have been paid only honorarium. 7. Learned counsel further submitted that, having regard to the cost of living and price index, honorarium of Rs.2,500/-per month is less than bare minimum required to lead life, further having regard to the age of the petitioners, it is not possible for them to get any other employment as they are already age barred, as such, a direction be issued to the State Government to regularize the services of these petitioners as Assistant Librarians with wages equivalent to the similarly placed employees in the State Government. 8. Learned Government Pleader submitted that admittedly, these petitioners have been appointed as Care takers of the Libraries. These Libraries do not have all the facilities. Only local news papers and magazines are kept. Petitioners are engaged for a limited hours of work in the morning and in the evening. This was only to encourage literacy in the rural areas and also to create awareness about the current affairs and encourage reading habit among the rural people. 9. Learned Government pleader submitted that, the Government, in exercise of power under Section 112 of the Panchayat Raj Act, has passed a Government order prescribing staff pattern for Grama Panchayat. This was only to encourage literacy in the rural areas and also to create awareness about the current affairs and encourage reading habit among the rural people. 9. Learned Government pleader submitted that, the Government, in exercise of power under Section 112 of the Panchayat Raj Act, has passed a Government order prescribing staff pattern for Grama Panchayat. Staff Pattern for Grama Panchayats consist of; one post of Secretary; one post of clerk / accountant-cum-Typist; one post of bill collector-cum-clerk; one post of Valve man / pump operator-cum-mechanic and an attender. This staff pattern is prescribed having regard to the volume of work in the respective Grama panchayats. Grama Panchayats are constituted on the basis of population and the area. The staff pattern does not include the post of Assistant Librarian, as such, the post of Assistant Librarian or Library Supervisor or Care Taker of Library is not a sanctioned post. There is no cadre nor recruitment prescribed for the said post. However, it is a scheme under which the library facilities are provided in the rural areas and to run such Libraries, as caretakers, the Government issued circular prescribing the qualification and mode of selection of the library care taker. These appointments are on temporary basis and on honorarium. As such, these services cannot be regularized. He has also relied on both the judgments of the Apex Court in UMA DEVI’s as well as KESARI’s case referred supra and submitted that, just because a person is working for 10 years on honorarium, same will not confer any right to regularize his services and such regularization would go against the constitutional scheme. Further, payment of honorarium cannot be equated to the payment of minimum wages as the post of Supervisor or otherwise is not a scheduled employment notified under the Minimum Wages Act He also submitted that periodically, the honorarium has been increased and there was also a proposal to increase the honorarium by Rs.1,000/-. The very fact that the petitioners have been appointed on honorarium, same does not confer any right on them to seek for regularization or otherwise. Even the petitioners are not entitled for minimum wages as this Court, in W.P. No.5038/2007 dated 11th September 2008, has held that a post, which is not notified, in the schedule to the Minimum Wages Act, does not attract the minimum wages. 10. Even the petitioners are not entitled for minimum wages as this Court, in W.P. No.5038/2007 dated 11th September 2008, has held that a post, which is not notified, in the schedule to the Minimum Wages Act, does not attract the minimum wages. 10. In the light of the submissions made by both the counsels, the points that arise for consideration are: "1. Whether the petitioners are entitled for regularization of their services? 2. Whether the petitioners are entitled for minimum wages on par with the Assistant Librarians?" 11. The facts, which are not in dispute are that, the Government, in order to encourage the Library facilities at rural areas, had formulated a scheme of having a library at all the Grama Panchayats. In this regard, some of the persons were engaged as care takers of the Libraries. Thereafter, the Government issued a circular dated 02.01.2001 inter alia prescribing certain guidelines, prescribing the minimum qualification and mode of selection of the care taker of the Librarian. The requisite qualification prescribed under the circular was that, the candidate must have passed SSLC, and should have undergone training for period of four months in Library management. The circular and the advertisement for selection of these care takers of the Librarians was on fixed honorarium, and temporary basis. These posts are not cadre post, but created under Scheme. The staff pattern for the Grama Panchayats has been prescribed by notification dated 04.01.2008. The sanctioned staff pattern consist of: one post of Secretary; one post of clerk / accountant-cum-Typist; one post of bill collector-cum-clerk; one post of Valve man / pump operator-cum-mechanic and an attender. These are the only sanctioned posts for Grama Panchayat. Since Grama Panchayats are constituted in respect of a smaller area, depending on the requirement and the capacity, the staff pattern has been prescribed. Under chapter IX of the Constitution of India, the Gram Panchayath is a self Government for smaller area, according to the requirement, the staff is sanctioned. 12. As regard to the regularization is concerned, the Apex Court, in the matter of regularization in the judgement of UMA DEVI’s case referred supra, which was reconsidered by the Apex Court in its later judgment in KESARI’s case ( AIR 2010 SC 2587 ) referred supra has observed at para 5, which reads as under:- "5. 12. As regard to the regularization is concerned, the Apex Court, in the matter of regularization in the judgement of UMA DEVI’s case referred supra, which was reconsidered by the Apex Court in its later judgment in KESARI’s case ( AIR 2010 SC 2587 ) referred supra has observed at para 5, which reads as under:- "5. It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Umadevi ( AIR 2006 SC 1806 : 2006 AIR SCW 1991), if the following conditions are fulfilled: (i) The employee concerned 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 other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006). It is only such employees, who satisfy the norms prescribed in the Apex Court judgment in KESARI's case are alone will be entitled for regularization, who need not have to undergo the process of open competition. However, in this case, admittedly, there is no sanctioned post against which these petitioners have been engaged nor the qualification prescribed to hold the post is on par with the Assistant Librarians. No doubt, some of the petitioners have been working for more than 10 years, but, that itself is not sufficient to regularize their services. However, in this case, admittedly, there is no sanctioned post against which these petitioners have been engaged nor the qualification prescribed to hold the post is on par with the Assistant Librarians. No doubt, some of the petitioners have been working for more than 10 years, but, that itself is not sufficient to regularize their services. Learned Government Pleader submitted that the nature of work of these petitioners does not require the continuous attendance. However, the petitioners' counsel contended that the petitioners have to work for seven hours a day. There is no staff pattern, no fixed working hours, no sanction of post. If without the post being a cadre post, nor being sanctioned, if only on the ground of 10 years of service, the services of such employee is regularized, it defeats the constitutional scheme of equal opportunity and equal participation. It also defeats the policy of reservation. However, unless these petitioners’ case falls with in the norms prescribed in the KESARi's case, they are not entitled for regularisation. 13. learned counsel for the petitioners submitted that the petitioners have been working in the Libraries for several years and if the Government is extracting work from them, the Government should pay at least minimum wages on par with similarly placed persons, i.e., equal pay for equal work. He also submitted that in view of constraints of life and conditions under which these petitioners and others are placed, they have no option, but to accept whatever nature of appointments offered to them. Same should not result in exploitation of their innocence. He also submitted that hard truth and reality of the life should also be required to be considered. The Government having regard to the fact that the petitioners are coming from rural background must take into consideration all these circumstances to protect their employment. 14. As far as minimum wages is concerned, to apply the minimum wages, the post must be a scheduled notified post in the schedule to the Minimum Wages Act. However, irrespective of the fact whether the post is notified or not, if the petitioners are working exclusively in the Libraries and their services are essential for the purpose of improving the rural talent and to create awareness, just because they are working on honorarium. Government should not continue them on honorarium for alt the time to come. However, irrespective of the fact whether the post is notified or not, if the petitioners are working exclusively in the Libraries and their services are essential for the purpose of improving the rural talent and to create awareness, just because they are working on honorarium. Government should not continue them on honorarium for alt the time to come. It should also have a regard to the ground reality and the hardship that these persons are subjected to, that they having put in 10 years of service, may not be in a position to get any other work, more so, in public employment. 15. Hence, in my opinion, if the petitioners give appropriate representation stating the number of hours a day they are working as library care takers, the nature of duties discharged by them and number of years they have served and necessity of continuing these Libraries in the rural areas and if there is need of such Libraries in the rural areas and if the Government has to continue such Libraries, then the Government having regard to these circumstances, fix the reasonable payment. Even though petitioners are paid honorarium, they should be paid reasonable amount so that they can at least lead reasonable life. However, as to what amount is to be fixed is left to the Government depending upon other circumstances, but while doing so, it must take into consideration all the above circumstances. 16. Learned Government Pleader submitted that there is a proposal for increasing honorarium by Rs.1,000/-. However, Rs.3,500/-in 2012, does not appear to be reasonable, having regard to the nature of work and qualification of the petitioners. Having regard to the cost of living, price index and the circumstances, I hope that the Government will take the same into consideration and would take appropriate decision as regard to fixation of honorarium / wages and also taking into consideration continuity of their services in respect of Libraries at different Grama Panchayats. 17. Having regard to these circumstances, I pass the following : Petitioners are directed to file consolidated appropriate representation reiterating all the details including their qualification, number of years of service, nature of duties discharged by them and the daily duration for which they are engaged. 17. Having regard to these circumstances, I pass the following : Petitioners are directed to file consolidated appropriate representation reiterating all the details including their qualification, number of years of service, nature of duties discharged by them and the daily duration for which they are engaged. If such representation is given, the Government shall consider the same (i) for continuity of petitioners in the same position (ii) for paying reasonable honorarium / wages with due regard to the cost of living and other circumstances. The Government shall make such exercise as early as possible not later than three months from the date of receipt of representation from the petitioners. Accordingly, the writ petitions stand disposed of.