IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 30th DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL NO.4282 OF 2012 (S-RES) BETWEEN:
1. THE PRINCIPAL SECRETARY, SOCIAL WELFARE DEPARTMENT, VIKASA SOUDHA, BENGALURU.
2. THE DY. COMMISSIONER, SOCIAL WELFARE DEPARTMENT, M.S.BUILDING, BENGALURU.
3. CHIEF SECRETARY, ZILLA PANCHAYAT, CHITRADURGA.
4. DISTRICT SOCIAL WELFARE OFFICER, CHITRADURGA.
5. TALUK SOCIAL WELFARE OFFICER, HIRIYUR, CHITRADURGA DISTRICT.
.. APPELLANTS (BY Sri. KIRAN KUMAR, HCGP) AND:
SMT. VIJAYAMMA, WIFE OF THIPPESWAMY AGED ABOUT 48 YEARS, RESIDENT OF 9TH CROSS, HULIYAR ROAD, HIRIYUR, WORKING AS COOK GOVERNMENT RESIDENTIAL SCHOOL, NANJAYANNA KOTTIGE VILLAGE HIRIYUR TALUK, CHITRADURGA DISTRICT.
(BY Sri P.H. VIRUPAKSHAIAH, ADV.) .. RESPONDENT THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN WRIT PETITION NO.447 OF 2012 DATED 22/02/2012.
THIS WRIT APPEAL COMING ON FOR HEARING ALONG WITH ORDERS ON I.As., THIS DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT The respondent-authorities being aggrieved by the order dated 22.02.2012 passed in Writ Petition No.447 of 2012, have filed this writ appeal.
2. Brief facts of the case are that the petitioner- employee was appointed as a daily wage employee on 10.07.1987. She was discharging her duties to the fullest satisfaction of the Departmental heads and had worked continuously without any interruption for over two decades and she is eligible, qualified and satisfies all the criteria for regularization as a regular employee in the Government of Karnataka. The petitioner is discharging duties as an Assistant Cook in one of the offices/schools owned, controlled and maintained by the Government. The petitioner gave a representation to the respondents seeking regularization of her employment but the respondents did not consider the representation submitted by the petitioner. The petitioner aggrieved by the communication of the respondent filed Writ Petition No.25462 of 2009 before this Court. This Court vide order dated 11.02.2011 disposed off the writ petition directing the 2nd and 4th respondents to consider the representations of the petitioner on merits and in accordance with law keeping in mind the judgments of the Apex Court in The Secretary, State of Karnataka v. Umadevi and others reported in (2006) 4 SCC 1 and STATE OF KARNATAKA AND OTHERS VS. M.L.KESARI AND OTHERS reported in (2010) 9 SCC 247 and further observed that it was open for the petitioner to make a fresh representation before the 2nd and 4th respondents if, she so chooses.
3. Thereafter, the petitioner gave a representation to the authorities seeking for regularization but the respondents did not consider her representation. Hence, the petitioner filed a contempt petition which came to be registered as CCC No.1397 of 2011 and was disposed off on the statement made by the respondents stating that the directions issued by this Court has been complied by passing an order rejecting the claim of the petitioner. Accordingly, the contempt proceeding was dropped reserving liberty to the petitioner to challenge the order passed by the respondents denying her claim for regularization. The respondent-authorities by order dated 18.10.2011 had rejected the representation submitted by the petitioner on 03.03.2009 and further ordered that there is no provision for regularization of daily wage employees.
4. The petitioner aggrieved by the said order filed Writ Petition No.447 of 2012 before this Court. The learned Single Judge, after considering the material on record, allowed the petition by quashing Annexure-P dated 18.10.2011 and directing the respondents to regularize the services of the petitioner forthwith and extend the consequential monetary benefits. The respondents aggrieved by the said order, have filed this writ appeal.
5. Heard the arguments of the learned counsel for the parties and perused the records.
6. The petitioner has rendered service for more than 24 years without any interruption and the respondents have extracted work from the petitioner during this long period. The action of the respondents amounts to unfair labour practice and have not considered the principles laid down by the Hon’ble Apex Court in the case of The Secretary, State of Karnataka v. Umadevi and others reported in (2006) 4 SCC 1 wherein in paragraph 53 it is held 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, [AIR 1967 SC 1071: (1967) 1 SCR 128], R.N. Nanjundappa [(1972) 1 SCC409] AND B.N. Nagarajan [1979 (4) SCC 507: 1980 SCC (L&S)4] 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 regularization 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 regularize as a one-time 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."
7. Further, since the petitioner is having all the essential qualification, the respondents have committed an error in rejecting the representation submitted by the petitioner. Regularization of her service, as sought by the petitioner, is on the basis that she had worked on daily wages for more than two decades. The respondents have failed to consider that the employees, who have served in the department, must be treated as regular employees. The reasons assigned by the respondents in the impugned order is bad in law.
8. The Hon’ble Supreme Court subsequently in the case of STATE OF KARNATAKA AND OTHERS VS. M.L.KESARI AND OTHERS reported in (2010) 9 SCC 247, by following the judgment in the case of Umadevi supra, in paragraphs 11, 12 and 13 has held as follows :
11. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad-hoc/casual basis for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.
12. These appeals have been pending for more than four years after the decision in Umadevi. The Appellant (Zila Panchayat, Gadag) has not considered the cases of respondents of regularization within six months of the decision in Umadevi or thereafter.
13. The Division Bench of the High Court has directed that the cases of respondents should be considered in accordance with law. The only further direction that needs to be given, in view of Umadevi, is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one- time regularization exercise, to find out whether there are any daily wage/casual/ad-hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfill the requirements mentioned in para 53 of Umadevi. If they fulfill them, their services have to be regularized. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfill the requirements of Para 53 of Umadevi, their services need not be regularised. If the employees who have completed ten years service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularization in suitable lower posts.
9. In view of the aforesaid discussion and the law laid by the Hon’ble Supreme Court in Umadevi and Kesari, supra, we are of the view that the learned Single Judge, after considering the material on record, has rightly allowed the writ petition. The respondents have not made out any ground to interfere with the impugned order. We too do not find any ground to interfere with the order dated 22.02.2012 passed by the learned Single Judge in Writ Petition No.447 of 2012.
Hence, we proceed to pass the following :
ORDER The Writ Appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE Kmv/rs