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2013 DIGILAW 268 (KAR)

Vijay Shankar C. Hebballi v. State of Karnataka

2013-02-28

B.S.INDRAKALA, H.BILLAPPA

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ORDER H. Billappa, J.—The petitioner has called in question, the order dated 9-10-2012, passed by the Karnataka Administrative Tribunal, Bangalore, in Application No. 3213 of 2010. By the impugned order, the Administrative Tribunal has dismissed the application filed by the petitioner challenging the order dated 12-5-2010 withdrawing his regularisation. 2. Aggrieved by that, the petitioner has filed this writ petition. 3. In brief the facts are: The petitioner was appointed as Assistant Engineer on 19-4-1990 on daily wages basis. Thereafter, the Government issued Circular dated 6-8-1990 in pursuance of the scheme for regularisation of daily wages employees appointed before 1-7-1984. Another circular dated 29-9-1994 was issued extending the benefit of regularisation to Engineering Graduates and Engineering Diploma Holders working on daily wages basis in various departments, appointed after 1-7-1984 and before 15-10-1992. Thereafter, Circular dated 20-10-1994 was issued clarifying eligibility and the procedure for regularisation of daily wagers as per the Circulars dated 6-8-1990 and 29-9-1994. In the circular dated 20-10-1994, it was clarified to consider the continuous service of ten years as daily wagers and the qualification prescribed as per the Cadre and Recruitment Rules as on the date of regularisation. Thereafter, the Government issued circular dated 24-3-1999 extending service benefit from the date of eligibility for regularisation as per Annexure-A9. 4. The petitioner completed ten years of continuous service on 18-4-2000. He was eligible for regularisation as per the Circular dated 29-9-1994. The first respondent passed order dated 15-7-2002 regularising the petitioner's appointment in the cadre of Assistant Engineer and further ordered that all service benefits would be with effect from the date of regularisation. 5. The petitioner challenged the order dated 15-7-2002 only to the extent of extending the service benefits from 15-7-2002 in Application No. 11850 of 2002. It is stated, on the assurance given by the Government to consider the case of the petitioner, the petitioner withdrew the application. Thereafter, the 1st respondent issued show-cause notice to the petitioner on 15-1-2009 stating that regularisation of the petitioner vide order dated 15-7-2002 was incorrect as the petitioner was not qualified as on the date of appointment. The petitioner replied the show-cause notice on 13-2-2009 stating that he was eligible and qualified for regularisation. The 1st respondent passed order dated 12-5-2010 vide Annexure-A7 withdrawing the order of regularisation dated 15-7-2002 on the ground that the petitioner was not qualified as on 19-4-1990. The petitioner replied the show-cause notice on 13-2-2009 stating that he was eligible and qualified for regularisation. The 1st respondent passed order dated 12-5-2010 vide Annexure-A7 withdrawing the order of regularisation dated 15-7-2002 on the ground that the petitioner was not qualified as on 19-4-1990. The petitioner challenged Annexure-A7 before the Administrative Tribunal in Application No. 3213 of 2010. The Tribunal by its order dated 9-10-2012 has dismissed the application. It was observed that it is open for the authorities to consider the regularisation of the services of the petitioner in view of his subsequent acquisition of qualification and the petitioner has discharged his duties as Assistant Engineer from 1990. Aggrieved by that, the petitioner has filed this writ petition. 6. The learned Counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that the petitioner was eligible and qualified for regularisation as on the date of regularisation as per the Government Orders dated 29-9-1994 and 20-10-1994. He also submitted that the condition for regularisation was to consider continuous service of ten years as a daily wager and qualification prescribed as per the Cadre and Recruitment Rules as on the date of regularisation. He also submitted that the Tribunal has erred in holding that the petitioner was not qualified as on the date of appointment without appreciating that it was not mandatory. He also submitted that the notifications dated 20-10-1994 and 29-9-1994 required the qualification as on the date of regularisation and therefore the Tribunal was not justified in holding that the petitioner did not possess the requisite qualification as on the date of appointment. Further he submitted that the petitioner is a Bachelor of Engineering (civil) and has possessed the degree during May 1990 and marks card was issued on 8-12-1990 and therefore, the Tribunal was not justified in holding that the petitioner was not qualified for appointment as Assistant Engineer. He also submitted that the petitioner has rendered blemishless service for more than 20 years and he was qualified for regularisation and in fact he was regularized. Thereafter, the order dated 12-5-2010 has been passed when the petitioner requested to consider his case as per the circular dated 24-3-1999. Further he submitted that the petitioner is entitled for the benefit of regularisation from the date of completion of ten years and not from the date of regularisation. Thereafter, the order dated 12-5-2010 has been passed when the petitioner requested to consider his case as per the circular dated 24-3-1999. Further he submitted that the petitioner is entitled for the benefit of regularisation from the date of completion of ten years and not from the date of regularisation. He also submitted that similarly situated persons have been regularised vide Annexures-A11 and A12. Further, he submitted that the right accrued to the petitioner has been taken away by withdrawing regularisation and it violates Article 311 of the Constitution of India. He therefore submitted that the impugned order cannot be sustained in law. He placed reliance on the decision of the Hon'ble Supreme Court in Secretary, AIR 2006 SC 1806 to contend that regularisation already made cannot be re-opened. 7. As against this, the learned AGA supported the impugned order. Further he submitted that the petitioner was appointed as Assistant Engineer on 19-4-1990 on daily wages basis. On that date, the petitioner was not a B.E. Graduate. He did not possess the requisite qualification. The appointment of the petitioner was illegal and void ab initio. After coming to know about this, the respondents have withdrawn the regularisation order dated 12-5-2010 which is perfectly justified in law. He also submitted that as the petitioner did not possess the requisite qualification at the time of his initial appointment, the regularisation has been withdrawn. Further he submitted that unless the petitioner fulfills that he completed ten years of continuous service and possessed requisite qualification at the time of his initial appointment, the services of the petitioner cannot be regularised. He also submitted that, when once the initial appointment is illegal, the length of service is not the criteria to regularise the services of the petitioner. The Tribunal considering all aspects and also relying upon the decision of the Hon'ble Supreme Court has rightly dismissed the application and therefore, the impugned order does not call for interference. He placed reliance on the decision of the Hon'ble Supreme Court in Shesh Mani Shukla Vs. D.I.O.S. Deoria and Others, AIR 2010 SC 1433 . 8. We have carefully considered the submissions made by the learned Counsel for the parties. 9. The point that arises for our consideration is: Whether the impugned order calls for interference? It is relevant to note, the petitioner has been appointed as Assistant Engineer on 9-4-1990 on daily wages basis. D.I.O.S. Deoria and Others, AIR 2010 SC 1433 . 8. We have carefully considered the submissions made by the learned Counsel for the parties. 9. The point that arises for our consideration is: Whether the impugned order calls for interference? It is relevant to note, the petitioner has been appointed as Assistant Engineer on 9-4-1990 on daily wages basis. On the date of appointment, the petitioner did not possess B.E. Degree. The petitioner has appeared for B.E. Examination during May 1990 and has obtained degree on 8-12-1990. Therefore, it is apparent, on the date of appointment, the petitioner did not possess the qualification of B.E. It is contended by the State that as on the date of appointment the Cadre and Recruitment Rules were in existence. The petitioner has obtained B.E. Degree on 8-12-1990. Therefore, it is clear, on the date of appointment, the petitioner did not possess B.E. Degree. Therefore, the initial appointment cannot be said to be valid. However, the petitioner has continued in service since 19-4-1990. His services have been regularised by order dated 15-7-2002. The notification dated 20-10-1994 states that continuous service of ten years as on the date of regularisation has to be considered. Considering this, the services of petitioner have been regularised. Thereafter, by order dated 12-5-2010 the regularisation order has been withdrawn. The reason being the petitioner did not possess the requisite qualification at the time of initial appointment. The Tribunal has held that the initial appointment was illegal as the petitioner did not possess B.E. Degree and has confirmed the order dated 12-5-2010 withdrawing regularisation. We do not find any error or illegality in it. However, the petitioner was appointed as Assistant Engineer on 19-4-1990 on daily wage basis. The petitioner has acquired B.E. Degree on 8-12-1990. The petitioner has served since 19-4-1990 continuously till now. His services were regularized from 15-7-2002. Thereafter, the regularisation has been withdrawn on 19-5-2010. Similarly situated persons namely Sri L.M. Jayaram and Sri D.S. Satish Kumar have been regularised and they are continuing in service. In the circumstances, we consider it proper to direct the respondents to consider regularisation of the petitioner from the date he has acquired B.E. Degree. His services were regularized from 15-7-2002. Thereafter, the regularisation has been withdrawn on 19-5-2010. Similarly situated persons namely Sri L.M. Jayaram and Sri D.S. Satish Kumar have been regularised and they are continuing in service. In the circumstances, we consider it proper to direct the respondents to consider regularisation of the petitioner from the date he has acquired B.E. Degree. This we are doing in the fact situation of this case and keeping in view the observation of the Hon'ble Supreme Court in case of Umadevi, at Para 44 which reads as follows: We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment. Accordingly, while confirming the order passed by the Tribunal, we direct the respondents to consider the regularisation of the petitioner from 8-12-1990 on which date the petitioner has acquired his B.E. Degree and pass appropriate orders. Till then the petitioner shall not be disturbed. The writ petition is disposed of as above.