Yashodhara T. And Others v. State Of Karnataka And Others
2020-03-12
ABHAY S.OKA, ASHOK S.KINAGI
body2020
DigiLaw.ai
JUDGMENT Abhay Shreeniwas Oka; CJ. - Heard the learned counsel appearing for the appellants. Appellants are the writ petitioners. 2. The challenge by the appellants in the writ petition was firstly, to a recruitment notification dated 21st July, 2016 for filling in 6,010 posts of Junior Lineman, out of which 2,523 posts were for the third respondent-Bengaluru Electricity Supply Company. The second prayer in the writ petition filed by the appellants was for directing the second and third respondents to reserve posts for contractual labourers by providing age relaxation and for grant of weightage for the service of contract labourers. 3. The case of the appellants is that they were employed by the third respondent as monsoon gangmen through a contractor/agency and they are in continuous service from 2009 with artificial breaks of a day or two. The learned Single Judge while disposing of the writ petition by the impugned order, referred to the judgment and order dated 14th September, 2018 in W.P. Nos. 28980-29039 of 2017, by which similar reliefs claimed by similarly placed employees were rejected so far as the challenge to the prayer for absorption and regularization is concerned. The said writ petitions were in case of Junior Linemen. However, by the judgment and order dated 14th September, 2018, the respondents were directed to pay wages to the petitioners on par with the regular Junior Linemen. The learned Single Judge referred to an order passed in Writ Appeal No. 922 of 2019 whereby the order of the learned Single Judge passed in W.P. Nos. 54914-54927 of 2017 was set aside and the third respondent (BESCOM) was directed to pay wages to the petitioners for the posts they were holding. Thus, the learned Single Judge relied upon the judgment and order dated 14th September, 2018 in W.P. Nos. 28980-29039 of 2017 in the case of similarly placed employees. 4. The submission made before the learned Single Judge by the appellants was that the said order in writ Appeal was per incuriam. The learned Single Judge held that the challenge made to the notification dated 21st July, 2016 pertaining to the recruitment made by the third respondent stands rejected. However, the respondents were directed to pay wages to the appellants for the posts which they were holding in accordance with the directions in W.A. No. 922 of 2019. 5.
The learned Single Judge held that the challenge made to the notification dated 21st July, 2016 pertaining to the recruitment made by the third respondent stands rejected. However, the respondents were directed to pay wages to the appellants for the posts which they were holding in accordance with the directions in W.A. No. 922 of 2019. 5. The learned counsel appearing for the appellants submits that though in the case of similarly placed employees, the challenge to the notification dated 21st July, 2016 may have been rejected, the relevant provisions of the Karnataka Electricity Board Recruitment and Promotion Regulations (for short, 'the Regulations') were not considered. He pointed out that Regulation 6 which lays down the procedure for recruitment provides that a recruitment can be made by three modes, viz., (i) by selection, or (ii) by absorption or (iii) by promotion. He submitted that in Regulation 5(ii), there is a provision for age relaxation for casual labourers/Mazdoors. He pointed out that under Regulation 17, there is a power vesting in the Board for relaxation of the Regulations regarding appointments, age and reservation of vacancies. He submitted that these provisions were not considered while deciding W.A. No. 922 of 2019 and therefore, the learned Single Judge ought to have considered the submission that the judgment was per incuriam. He submitted that as per the interim order, this Court has directed to reserve 332 posts as can be seen from the order dated 10th March, 2017. He also invited our attention to the fact that the appellants are in employment by virtue of the interim order. 6. We have considered the submissions. We have perused the judgment and order dated 14th September, 2018 in W.P. Nos. 28980-29039 of 2017. It was a case of similarly placed employees who were initially appointed as monsoon gangmen. The prayer in the petition was for regularization which was not granted. We have also perused the judgment and order dated 8th January, 2020 passed in W.A. No. 922 of 2019. 7. We have perused Regulation 6 which provides that absorption is one of the three modes of recruitment. In the present case, out of the three modes provided therein, that is, by direct recruitment, or by absorption or by promotion, the second and third respondents adopted the mode of direct recruitment. We have also perused the provisions of Regulation 5(ii).
7. We have perused Regulation 6 which provides that absorption is one of the three modes of recruitment. In the present case, out of the three modes provided therein, that is, by direct recruitment, or by absorption or by promotion, the second and third respondents adopted the mode of direct recruitment. We have also perused the provisions of Regulation 5(ii). The said provision is applicable in case a recruitment of candidates is made from amongst casual labourers/Mazdoors. In such a case, the age relaxation of up to a maximum of ten years can be granted. In the present case, the second and third respondents have adopted the option of direct recruitment and therefore, Regulation 5(ii) will have no application. 8. It is true that under Regulation 17, there is a power vesting in the Board to relax the Regulations regarding appointment, age and vacancy. It is pointed out that in case of the earlier recruitment notification, a provision was made for age relaxation. However, that does not create any right in favour of the appellants. 9. One of the modes of appointment provided in the Regulations is of absorption. However, it is the discretion of the second and third respondents to make recruitment either by direct recruitment or by absorption or by promotion. 10. We do not see any right created in favour of employees appointed through a contractor for absorption. Therefore, though no case is made out for interference, as there are provisions for relaxation in the Regulations, we propose to continue the interim order which was operating during the pendency of the writ petitions for a reasonable time to enable the petitioners (appellants herein) to make an appropriate representation to the second and third respondents for grant of absorption/regularization, if necessary, by exercising the power of relaxation. Moreover, the learned counsel appearing for the appellants submits that there is a provision made in the recent budget providing for regularization of such category of employees. 11.
Moreover, the learned counsel appearing for the appellants submits that there is a provision made in the recent budget providing for regularization of such category of employees. 11. Hence, we pass the following order: ORDER (i) No interference is called for with the impugned order and accordingly, the appeal is dismissed; (ii) The interim order which was operative till the disposal of the writ petition by the learned Single Judge will continue to operate for a period of six (6) months from the date on which this order is web hosted on the website of this Court; (iii) It is open for the appellants to make a representation to the second and third respondents for absorbing them in regular service or for regularization of their employment; (iv) The appellants can always rely upon the power of relaxation conferred on the Board under the Recruitment Regulations; (v) If according to the case of the appellants, the State Government has taken a decision to absorb such category of employees, the appellants can always rely upon the decision said to have been taken by the Government; (vi) If a representation is accordingly made to the second and third respondents within one month from the date on which this order is web hosted, the same shall be decided by the second and third respondents within a period of two months from the date of making a representation; (vii) The order passed on the representation shall be immediately communicated to the appellants; (viii) The pending applications do not survive for consideration and the same are accordingly disposed of. This appeal was disposed of by judgment and order dated 12th March 2020. After clause(iii) of the operative part of the order passed in the aforesaid appeal, clause (iii a) be added which is as follows: '(iii a) If according to the case of the appellants there is material available to show that large number of posts are vacant, while making the representation, the appellants are free to rely upon available data to show vacant posts.'