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2019 DIGILAW 439 (KAR)

Shyla Shivappa Budihal v. Muruganna

2019-02-16

B.VEERAPPA, P.G.M.PATIL

body2019
JUDGMENT : B.Veerappa, J. - The unsuccessful applicants before the Karnataka State Administrative Tribunal (for short the 'KAT'), Bengaluru have filed the present writ petitions for writ of certiorari to quash the order dated 26.04.2017 Annexure-A passed by the KAT and for directions directing the respondents to regularize their services as Motivators and grant pay on par with pay of Group-D post i.e., Rs.9600-200-12000-250-13000-300-14200- 350-14550 with allowances and other service benefits and extend new pension scheme insofar as petitioners are concerned and to grant consequential benefits in accordance with law. 2. It is the case of the present petitioners that they were appointed as Motivators in the year 1984-85 in Forest Department on part time and temporary basis on a monthly honorarium of Rs.250/-, which has been revised from time to time and presently at Rs.8,000/-. Even though they are continuously working on par with the regular employees, their services have not been regularized; that even Group-D employees in the Department are given pay scale of Rs.9600-14550/- but even the minimum of the said pay scale is not paid to them. They have submitted representations to the respondents praying for regularization of their services and grant of pay scale attached to the Group-D post. Inspite of representations the respondents neither considered nor passed any orders. Therefore, the present petitioners were constrained to file applications. Therefore, the petitioners and other applicants filed Applications No.2227 to 2303 of 2017 before the KAT praying to direct the respondents to consider the applicants' representation and to regularize their services and grant them pay scale attached to Group-D post and all other benefits including new pension scheme. The KAT at the stage of admission itself considering the pleadings proceeded to reject all the applications by relying upon the judgment of Hon'ble Supreme Court in case of Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1 . Hence, the present writ petitions are filed. 3. Sri S.Narayan Nagesh Kumar, learned counsel for the petitioners contended that the impugned order passed by the KAT rejecting the applications filed by the petitioners and others is erroneous and contrary to material on record. He would further contend that all the petitioners are working for more than 30 years under second respondent on par with the regular employees in the sanctioned posts. He would further contend that all the petitioners are working for more than 30 years under second respondent on par with the regular employees in the sanctioned posts. Even after lapse of 30 years, respondents have not opened their eyes and almost all the petitioners have now become age bar and some of them are married and some of them have already retired. The inaction on the part of the State Government in not considering the applications of petitioners for regularization of their services, they are driven before the Court. Unfortunately, the KAT has not considered the material on record in a proper perspective thereby erroneously rejected the applications of the petitioners at the stage of admission itself. 4. He further contended that similarly situated persons against the very same KAT order dated 26.04.2017 made in Applications No.2227 to 2302 of 2017, some of them have filed writ petitions before the Coordinate Bench of this Court at Dharwad Bench in W.P.Nos.109309-109338/2017. The Co-ordinate Bench order dated 07.02.2018 disposed of the writ petitions and set aside the impugned order passed by the KAT and directed the respondents to consider the representations submitted by the petitioners therein dated 09.12.2016 and to pass appropriate orders in accordance with law in an expedite manner, not later than three months from the date of receipt of the copy of the order. Therefore, he sought to allow the writ petitions. 5. Per contra Sri K.M.Ghate, learned Additional Government Advocate appearing for respondents sought to justify the impugned order and contended that the petitioners were not appointed as against sanctioned posts. Therefore, the order passed by the KAT is just and proper and sought to dismiss the petitions. 6. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 7. It is the specific case of the petitioners that all these petitioners are working as Forest Motivators under the respondents Forest Department for more than 30 years and they were appointed as part time or temporary in sanctioned posts after conducting interviews on par with the regular employees. Though the posts are vacant still the State Government has not initiated any positive steps to regularize the service of these petitioners. 8. It is further contended that the similarly situated persons in other department have been already regularized. Though the posts are vacant still the State Government has not initiated any positive steps to regularize the service of these petitioners. 8. It is further contended that the similarly situated persons in other department have been already regularized. The inaction on the part of the respondents in not considering the representations of the petitioners and regularizing their services is in utter violation of Articles of 14 and 21 of the Constitution of India. Before the KAT, the State has not filed any objections, the KAT has proceeded to dismiss the applications mainly relying upon the judgment of Hon'ble Supreme Court in Umadevi's case. 9. In fact in Umadevi's case, the Hon'ble Supreme Court has framed guidelines that if the employees are working continuously for more than 10 years without intervention of the interim orders of the Court they are entitled for regularization. The said aspect has not been considered by the KAT while passing the impugned order. It is the duty and the constitutional obligation on the part of the respondents to consider each and every case of the petitioners individually with reference to the appointment orders and their service records and to consider whether they are entitled for regularization or not and taking into consideration the similarly situated persons in other departments the State Government has already regularized, the same has not been considered. 10. It is the duty of the respondents to consider and pass appropriate orders, unfortunately they have not considered and therefore petitioners have been driven before the KAT, the KAT has also rejected the applications without following the procedure. 11. It is also relevant to state at this stage that the Deputy Conservator of Forest by letter dated 19.02.2007 and 23.10.2009 has recommended to the State Government, Principal Secretary, Forest Department to regularize the services of these petitioners as there are vacant posts of Forest Motivators in the department. The said aspect has not been considered either by the State Government or by the KAT. The Hon'ble Supreme Court in the case of State of Jammu and Kashmir and others vs. District Bar Association, Bandipora, (2017) 3 SCC 410 , considering the Umadevi's case also at Paragraphs 19, 20, 25 and 26 held as under :- "19. The said aspect has not been considered either by the State Government or by the KAT. The Hon'ble Supreme Court in the case of State of Jammu and Kashmir and others vs. District Bar Association, Bandipora, (2017) 3 SCC 410 , considering the Umadevi's case also at Paragraphs 19, 20, 25 and 26 held as under :- "19. The judgment in Renu v. District and Sessions Judge, (2014) 14 SCC 50 does not preclude, as a principle of law, the framing of an appropriate scheme of regularization in appropriate situations meeting the norms spelt out in Umadevi (3) State of Karnataka v. Umadevi, (2006) 4 SCC 1 and the decisions which have followed. Dealing with a scheme framed for regularisation, this Court in Amarendra Kumar Mohapatra v. State of Orissa, (2014) 4 SCC 583 held as follows : "38. Equally important is the fact that even after declaring the true legal position on the subject and even after deprecating the practice of appointing people by means other than legitimate, this Court felt that those who had served for ten years or so may be put to extreme hardship if they were to be discharged from service and, therefore, directed the formulation of a scheme for their regularisation. This was no doubt a one-time measure, but so long as the appointment sought to be regularised was not illegal, the scheme envisaged by para 53 of the decision in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 extracted above permitted the State to regularise such employees. Dr Dhavan argued that the appellant Stipendiary Engineers had, by the time the decision in Umadevi (3) case was pronounced, qualified for the benefit of a scheme of regularisation having put in ten years as ad hoc Assistant Engineers and fifteen years if their tenure was to be counted from the date of their employment as Stipendiary Engineers. He contended that even in the absence of a Validation Act, Stipendiary Engineers appointed on ad hoc basis as Assistant Engineers, who had worked for nearly ten years to the full satisfaction of the State Government would have been entitled to regularisation of their services in terms of any such scheme." "43. As to what would constitute an irregular appointment is no longer res integra. As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 , has examined that question and explained the principle regarding regularisation as enunciated in Umadevi (3) case. The decision in that case summed up the following three essentials for regularisation: (1) the employees have worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal, and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage: (State of Karnataka v. M.L.Kesari, (2010) 9 SCC 247 , SCC p.250). '7. It is evident from the above that there is an exception to the general principles against Page "regularisation" enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in a 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.' " "45. 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.' " "45. The upshot of the above discussion is that not only because in Umadevi (3) case this Court did not disturb the appointments already made or regularisation granted, but also because the decision itself permitted regularisation in case of irregular appointments, the legislative enactment granting such regularisation does not call for interference at this late stage when those appointed or regularised have already started retiring having served their respective departments, in some cases for as long as 22 years." 20. This would be again evident from the following observations made by the Court in Surendra Kumar v. Greater Noida Industrial Development Authority, (2015) 14 SCC 382 , wherein it was held : (SCC pp.386 & 387, para 12 and 13). "12. In the impugned judgment [Greater Noida Industrial Development Authority v. Surendra Kumar,2013 SCCOnLine(All) 9827], the Division Bench proceeded on the premise as if Umadevi (3) case held that the State Government, in no circumstance, can regularise the services of contractual employees. In para 53 of Umadevi (3) case, the Constitution Bench carved out an exception by observing that the Union of India/State Governments/their instrumentalities should take steps to regularise the services of such irregular employees who have worked for more than ten years and para 53 reads as under: (SCC p. 42) 13. Considering the facts of the present case on the touchstone laid down in Umadevi (3) case, it will be seen that the Division Bench was not right in setting aside the appointment of the appellants. More so, it was nobody's case challenging the appointment of the appellants. Admittedly, the appellants were engaged as contractual employees from 1994 and have completed more than ten years of continuous service with Respondent 1. They continued in service not by the orders of the Court/Tribunal, but by the decision of the respondents. The appellants were regularised as per the policy decision dated 16-4-2003 taken by Respondent 1 and approved by the State Government vide Letter dated 5-3-2008. Since the appointment of the appellants were made pursuant to the policy of regularisation, the High Court was not right in quashing the appointment of the appellants as the same were never in question before the High Court. Since the appointment of the appellants were made pursuant to the policy of regularisation, the High Court was not right in quashing the appointment of the appellants as the same were never in question before the High Court. The plea that was raised by the appellants was only to seek regularisation with retrospective effect from 20-11-2002 and the consequential seniority." "25. A three-Judge Bench of this Court in Official Liquidator v. Dayanand, (2008) 10 SCC 1 , held thus : "75. By virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka v. Umadevi (3) is binding on all the courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench judgment has been followed by different two-Judge Benches for declining to entertain the claim of regularisation of service made by ad hoc/temporary/daily wage/casual employees or for reversing the orders of the High Court granting relief to such employees - Indian Drugs and Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 , Gangadhar Pillai v. Siemens Ltd, (2007) 1 SCC 533 , Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara, (2007) 5 SCC 326 and Hindustan Aeronautics Ltd. v. Dan Bahadur Singh (2007)." " "26. The principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularisation. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularisation. Otherwise, this would simply reinvigorate a class of claims which has been shut out permanently by Uma Devi case. Ultimately, it would have to be left to the State and its instrumentalities to consider whether the circumstances warrant such a scheme being formulated. The formulation of such a scheme cannot be accorded the status of an enforceable right. It would perhaps be prudent to leave it to a claimant to establish whether he or she falls within the exceptions carved out in para 53 and falls within the ambit of a scheme that may be formulated by the State. Subject to the riders referred to above, a scheme of regularisation could fall within the permissible limits of Uma Devi and be upheld." " 12. It is also relevant to state at this stage, that the order dated 07.02.2018 made in W.P.Nos.109309- 109338/2017 by the Co-ordinate Bench of this Court at Dharwad Bench has reached finality. 13. In view of the aforestated reasons, the impugned order passed by the KAT rejecting the applications at the stage of admission cannot be sustained and it requires for reconsideration by the first respondent State Government and pass order in accordance with law. 14. For the reasons stated above, the writ petitions are allowed. The impugned order dated 26.04.2017 made in Applications No.2227 to 2303 of 2017 only insofar as the present petitioners are concerned are hereby quashed. The matters are remanded back to the first respondent State Government to consider the representations of the petitioners dated 09.12.2016 for regularization of their services by taking into consideration their long standing services in the department and in the light of the observations made by the Supreme Court as stated supra and to pass appropriate orders strictly in accordance with law within a period of three months from the date of the receipt of the copy of this order. Ordered accordingly.