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2016 DIGILAW 566 (KAR)

V. S. KRITHIKA v. DIRECTOR, DIRECTOR OF LOKASHIKSHANA (MASS EDUCATION)

2016-07-20

B.SREENIVASE GOWDA, JAYANT PATEL

body2016
ORDER : 1. Rule. Mr. D. Nagaraj, learned Additional Government Advocate, appears for respondents 1 and 2. With the consent of the learned Advocates appearing for both the sides, the petition is finally heard. 2. The short facts of the case appear to be that the petitioner was working as Typist with the respondents. As per the petitioner, after the decision of the Apex Court in case of Secretary, State of Karnataka and others vs. Umadevi and others, reported at 2006 (4) SCC 1 , her case was required to be considered for regularization. However, as her case was not considered for regularization, the petitioner approached the Tribunal by preferring Application No. 2651/2012. In the said proceedings, the respondents contended that the case of the petitioner was differently situated, because she was continued in service on account of the interim order passed by this Court in W.P. No. 12610/1993 and 8192/1990. Therefore, as per the exception provided by the decision of the Apex Court in case of Umadevi (supra) the petitioner was not entitled for regularization. However, the Tribunal recorded the fact that no document was produced on behalf of the respondents before the Tribunal to show that the continuation of the petitioner as daily wager employee was pursuant to the interim order passed by this Court in the above referred writ petitions. The Tribunal thereafter, vide order dated 6th November, 2012, found that there was no reason to disallow the claim of the applicant for consideration of regularization in terms of the decision of the Apex Court in terms of Umadevi’s case supra, and the Tribunal directed the respondent to consider the case of the applicant for regularization. 3. It appears that the matter was carried further by the respondents before this Court by preferring W.P. No. 37338/2013 and this Court did not find any case for interference, because this Court found that it is open to the respondents to consider the case of the petitioner on merits, in accordance with law. But the fact remains that the petition was dismissed vide order dated 22.11.2013. The matter was considered again and the respondent made an endorsement that her services are not to be regularized. As per the petitioner, the other similarly situated employees’ services who were working as daily wagers were regularized vide order dated 16.09.2014. 4. Under the circumstances, the petitioner preferred Application No. 9420/2014 before the Tribunal. The matter was considered again and the respondent made an endorsement that her services are not to be regularized. As per the petitioner, the other similarly situated employees’ services who were working as daily wagers were regularized vide order dated 16.09.2014. 4. Under the circumstances, the petitioner preferred Application No. 9420/2014 before the Tribunal. The Tribunal in the impugned order dated 28.04.2016 has taken the view that the decision for rejection of regularization calls for no interference and ultimately, the Tribunal dismissed the petition. Under the circumstances, the present petition before this Court. 5. We have heard Mr. Ranganatha S. Jois, learned Counsel appearing for the petitioner and Mr. D. Nagaraj, learned Additional Government Advocate appearing for the respondents. 6. As such, in our view, once in the earlier round of litigation, vide order dated 6th November, 2012, in Application No. 2651/2012, the Tribunal did not accept the contention of the respondents that the petitioner was continued in service pursuant to an interim order passed by this Court in the writ petition and the ground for disallowance of the claim for regularization was not proper, it was not open to the Tribunal to take a different view by undertaking the exercise once again to find out as to whether the petitioner was continued in service on account of the impugned order passed by this Court or not, nor any different finding could be recorded in the impugned order, than as was concluded in the earlier decision, in Application No. 2651/2012. 7. However, the learned Government Advocate attempted to contend that when the earlier order of the Tribunal was challenged in the writ petition before this Court, vide order dated 22nd November, 2013, this Court has observed that it was open to the respondent to consider on merits the case of the petitioner herein, in accordance with law and therefore the other ground which was earlier considered by the Tribunal, could be reexamined and once it was found that she was continued in service pursuant to the impugned order of this Court in the writ petition, her case would fall in the exceptional category as observed by the Apex Court in Umadevi, supra and therefore the view taken by the Tribunal in the impugned order cannot be said to be incorrect or in contravention with the earlier view taken in its decision in Application No. 2651/2012. 8. 8. In our view, the contention cannot be countenanced for two reasons. One is that, the Tribunal was bound by its own order and the second is that when this Court observed, in consideration of the case of the petitioner on merits, would mean, any other grounds available for denial of the benefit of regularization than the ground which was already concluded by the Tribunal. In any case, if one considers the principle of constructive res judicata, then also a contention which ought to have been raised is deemed to have concluded. In any case, this Court has dismissed the petition and passed the order dated 22nd November, 2013. Under these circumstances, we find that the contention raised by the learned Government Advocate cannot be accepted. 9. In view of the above, the only answer is that, the Tribunal could not take a contrary view than the view already taken earlier in its own order, which was not interfered with by this Court. It is hardly required to be stated that, if a quasi judicial authority is permitted to take a different stand than was taken inter se between the same parties in the earlier decision, the sanctity of the order of the judicial forum or quasi judicial forum will be lost, apart from the aspect that such is even otherwise not permissible in law. 10. In view of the aforesaid observation and discussion, the impugned order passed by the Tribunal is set aside with a direction that the respondents shall consider the case of the petitioner for regularization in accordance with law, in the light of the decision of the Apex Court in Umadevi, supra, with the clarification that the ground of continuation in service on account of the so called interim order of this Court would not be available to the respondent for denying the benefit of regularization. But the other aspects shall be examined in accordance with law and the decision shall be taken, preferably within a period of four months from the date of the order. The impugned order of the Tribunal is set aside and the endorsement dated 02.06.2014 which was the subject matter of challenge before the Tribunal .is set aside. Petition is allowed to the above extent. Rule made absolute.