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2020 DIGILAW 772 (KAR)

S. Basavanna S/o Late Chikkaveerappa v. State Of Karnataka

2020-03-19

ALOK ARADHE, M.NAGAPRASANNA

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ORDER : The petition is admitted for hearing. With the consent of the learned Counsel for the parties, the same is heard finally. 2. The petitioner assails before us the order of the Karnataka State Administrative Tribunal (hereinafter referred to as ‘Tribunal’ for short) dated 24.2.2012 passed in application No.7238/2004 whereby the Tribunal has rejected the application declining to grant the relief of regularisation of service as sought in the application. 3. The facts giving rise to filing of the petition are briefly stated that, the petitioner claims that he was appointed as a cook in the Department of Tourism on 9.10.1980, on a monthly salary of Rs.180/. Later on, he worked at Hotel Gokarna and was transferred to Mudibidre and was working there between 1986 and 1990. Thereafter, he was transferred to Srirangapatna. Throughout, he was working as a daily wage employee. It transpires that the services of the petitioner was continued from time to time with intermittent breaks as per AnnexuresA2 to A15. 4. The petitioner had approached the Tribunal in application No.290/1989 seeking regularisation of his services. By an order dated 19.4.1990, the Tribunal rejected the claim of the petitioner for regularisation, but held that the petitioner was entitled to salary of Rs.780/per month without allowances and an annual increment of Rs.15/w.e.f. from 1.1.1990. Subsequently, in terms of the order dated 7.2.1995, the services of the petitioner was regularized as a cook w.e.f. 22.10.1993 relying on the Government orders dated 6.8.1990 and 20.10.1994. 5. It transpires that, in the meantime, another application was filed by the petitioner before the Tribunal in application No.717/1995 which was again seeking regularisation of his services in which the Tribunal directed the State Government to consider the claim of the petitioner for absorption and pass appropriate orders within three months. Subsequently, a notice dated 12.9.1996 was issued to the petitioner to show cause as to why the order of regularisation dated 7.2.1995 should not be recalled. On consideration of the reply given by the petitioner, an order dated 22.6.1996 came to be passed cancelling the order of regularisation dated 7.2.1995 which was in favour of the petitioner. 6. The order cancelling the regularisation of the services of the petitioner was challenged before the Tribunal in application No.1737/1997. On consideration of the reply given by the petitioner, an order dated 22.6.1996 came to be passed cancelling the order of regularisation dated 7.2.1995 which was in favour of the petitioner. 6. The order cancelling the regularisation of the services of the petitioner was challenged before the Tribunal in application No.1737/1997. The Tribunal by an order dated 22.7.1997, disposed of the application holding that the application does not merit any consideration, after which the petitioner appears to have approached the concerned authorities again requesting for regularisation of his services in response to which an Official Memorandum dated 14/16.7.1990 was issued to the petitioner intimating that there was no scope of taking any action on his request. Contending that he was entitled to be considered for regularisation in terms of the Government Orders dated 6.8.1990 and 20.10.1994, the petitioner again approached the Tribunal in application No.7238/2004 on the ground that he has completed ten years of service and he was entitled to the regularisation with all consequential benefits. The Tribunal by its order dated 24.2.2012 dismissed the application on the ground that no relief can be granted to the petitioner with regard to regularisation of services. Aggrieved by the said order of the Tribunal, the petitioner is before us in the instant writ petition. 7. We have heard Sri Danappa P. Panibhate, learned counsel appearing for the petitioner and Sri S.S. Mahendra, learned Additional Government Advocate appearing for the respondents. 8. Learned Counsel for the petitioner contends that the petitioner has completed ten years of service having been appointed as a cook on 9.10.1980. In terms of the judgment of Hon'ble Supreme Court in case of DHARWAD DISTRICT PWD LITERATE DAILY WAGE EMPLOYEES ASSOCIATION VS. STATE OF KARNATAKA reported in (1990)2 SCC 1990 and the Government Orders dated 6.8.1990 and 20.10.1994 issued in terms of the aforementioned judgment, the petitioner claims to have been working even as on date in the Government of Karnataka, Department of Tourism. It is contention of the learned advocate that the order of regularisation that was issued on 7.2.1995 could not have been withdrawn by the Government. The action of the Government with regard to withdrawal of services of the petitioner was illegal and high handed. The learned Counsel further contended that the Tribunal has erred in not considering this aspect of the matter and has declined the relief of regularisation. 9. The action of the Government with regard to withdrawal of services of the petitioner was illegal and high handed. The learned Counsel further contended that the Tribunal has erred in not considering this aspect of the matter and has declined the relief of regularisation. 9. Per contra, learned Additional Government Advocate contended that the petitioner is not entitled to any relief of regularisation in terms of the judgment of the Hon'ble Supreme Court in case of SECRETARY, STATE OF KARNATAKA AND OTHERS VS. UMADEVI AND OTHERS reported in (2006)4 SCC 1 , more so, in the light of the fact that the petitioner has never been in continuous service and he was terminated for misconduct on 31.12.1985 and was once again, he was appointed on daily wages on 6.3.1996. Noticing the fact that the petitioner was terminated from services for misconduct, the order of regularization that was passed had been withdrawn in the year 1996 and that the order of regularisation dated 7.2.1995 has become final. 10. We have given our anxious consideration to the submissions made by the learned Counsel for the parties and perused the papers. 11. Admittedly, the services of the petitioner was regularized by an order dated 7.2.1995, which came to be withdrawn by an order dated 26.9.1996. This order of withdrawal of cancelling of the regularisation of the services of the petitioner was challenged by him before the Tribunal in application No.1737/1997. The Tribunal by its order dated 22.7.1997 disposed the application observing that the petitioner had approached the Tribunal earlier in application No.290/1989 seeking regularisation of his services and thereafter, another application in application No.717/1995 again seeking a request to regularize his services in terms of the Government Order dated 20.10.1994 which came to be disposed on 15.11.1995. The petitioner has again approached the Tribunal with the same relief in application No.1737/1997. But there was an additional challenge to the order cancelling the regularisation. Nonetheless, the Tribunal rejected the application by the following order “In the light of the above, we are of the considered view that the applicant has not made out any fresh grounds for seeking further directions in the matter, as such, this application is disposed of as not meriting any consideration.” 12. The order of cancellation was not interfered with by the Tribunal and the application was disposed of on the ground that it does not merit any consideration. The order of cancellation was not interfered with by the Tribunal and the application was disposed of on the ground that it does not merit any consideration. This order of the Tribunal dated 22.7.1997 was never questioned by the petitioner. Thus, the order cancelling his regularisation dated 26.9.1996 became final. 13. The petitioner went on giving representations to the Government seeking consideration of his case for regularisation on the very same ground. The same having not been considered, filed another application No.7238/2004. The Tribunal noticing the conduct of the petitioner in filing repeated applications for the same relief as well as the considering the matter on merits whether he was entitled to regularisation, declined to accept the contentions of the petitioner and dismissed the application. 14. The contention of the learned Counsel for the petitioner is that the petitioner is entitled to the relief of regularisation in terms of the judgment of the Hon'ble Supreme Court in case of Umadevi (Supra). We have considered this submission as well. The Hon'ble Supreme Court in case of Umadevi (Supra) has laid down conditions for regularisation, at paragraph 53 which reads as follows : 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ (1967) 1 SCR 128 : AIR 1967 SC 1071 ] ,R.N. Nanjundappa [ (1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [ (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. In terms of the aforeextracted paragraph, the petitioner does not fit into any of the conditions laid down by the Hon'ble Supreme Court. Thus the petitioner is not entitled to the relief of regularization as the appointment of the petitioner is not against a vacant sanctioned post , it is a litigious employment, above all , the order cancelling the regularization of the petitioner dated 26-09-1996 has become final. 15. The order of the Tribunal neither suffers from any judicial infirmity nor any error apparent, which warrants interference by exercising supervisory jurisdiction under Article 227 of the Constitution of India. 16. In the result, we do not find any merit in this petition and the same is dismissed.