IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY 2019 BEFORE THE HON'BLE MR. JUSTICE P. B. BAJANTHRI WRIT PETITION NO.44548 OF 2016 (S-RES) Between:
Sri.Nagabhushana, S/o late Ravanappa, Aged about 51 years, R/at No.24, 3rd Main, 3rd Cross, RMV II Stage, Dollars Colony, Bengaluru-560 094.
(By Sri.V.Lakshinarayana, Sr. Advocate for Balaji Associates) And:
1. State of Karnataka, By its Secretary of Govt, Agriculture and Horticulture Dept, M.S.Buildings, Dr.Ambedkar Road, Bangalore-560 001.
2. The Board of Regents,. Represented by the Chairman, & Vice Chancellor, University of Agricultural Science, and G.K.V.K, Bengaluru-560 065.
…Petitioner 3. The University of Agricultural Sciences, Represented by its Registrar, G.K.V.K., Campus, Bengaluru-560 065.
4. The Administrative Officer, The University of Agricultural Sciences, Represented by its Registrar, G.K.V.K. Campus Bengaluru-560 065.
...Respondents (By Sri.Sreedhar .N. Hegde, HCGP for R1 Sri.R.Sridhar Hiremath, Advocate for R2 to R4) This Writ Petition is filed under Articles 226 and 227 of Constitution of India praying to direct the respondents to treat the order of absorption dated 01.09.2015 vide Annexure-J from ‘D’ group to ‘C’ group with effect from 1995 as is done in case of his juniors vide order dated 09.11.1995 as per Annexure-Q, vide order dated 08.10.2010 as per Annexure-R and vide order dated 16.04.2012 as per Annexure-G and grant him all consequential benefits and etc., This Writ Petition coming on for Preliminary hearing in ‘B’ Group this day, the Court made the following:-
ORDER In the instant petition, petitioner has sought for the following reliefs;
(a) Issue a writ of mandamus, directing respondents- University to treat the order of absorption dated 01.09.2015 as per Annexure-J from ‘D’ group to ‘C’ group with effect from 1995 as it is done in the case of his juniors vide order dated 09.11.1995 as per Annexure-Q, vide order dated 08.10.2010 as per Annexure-R and vide order dated 16.04.2012 as per Annexure-G and grant him all consequential benefits.
(b) Issue a writ of certiorari or any other writ, order or direction, quashing the letter dated 23.06.2016 bearing No.AO/EST-I/ D to C/2016-2017 issued by the respondent No.4-Administrator as per Annexure- M as arbitrary and violative of Articles 14 and 16 of the Constitution of India;
(c) Further direct the Respondents to extend all the benefits of regularisation into ‘C’ group from the date on which his juniors were extended on the basis of the recommendations of the Committee dated 13.06.2016 vide Annexure-L;
(d) Issue any other writ, order or direction and such other reliefs as this Hon’ble court may deem fit to grant in the facts and circumstances of the case, in the interest of justice and equity.
2. The petitioner was appointed in the month of April 1993. His services were regularized against Group ‘D’ post, whereas, identical situated persons also appointed in the year 1995 to 1998. Their services also regularized against Group ‘D’ post. Thereafter, their regularisation of services against Group ‘D’ was modified and their services have been regularized against Group ‘C’ post.
3. Arising out of the above facts and circumstances, petitioner is stated to have been approached the competent authority to extend identical benefits to the petitioner while citing the discrimination as well as he being the senior in entering the service than the persons who are appointed in the years 1995 to 1998 and who have been extended the benefit of regularisation against group ‘C’ post. In this regard Board has passed resolution dated 13.06.2016. Solution portion reads as under;
“6. ²æÃ.£ÁUÀ¨sÀƵÀt, ¥ÀjZÁgÀPÀ, PÀÈ««, ¨ÉAUÀ¼ÀÆgÀÄgÀªÀgÀÄ K¦æ¯ï 1983 gÀ°è «zÁåºÀðvɺÉÆA¢zÀÄÝ; r¸ÉA§gï 1983 gÀ°è PÉ®¸ÀPÉÌ ¸ÉÃj 10 ªÀµÀðUÀ¼ÀÄ ¥ÀÆtðUÉÆAqÀ ¢£ÁAPÀ r¸ÉA§gï 1993gÀ°è PÀÈ««¬ÄAzÀ r'zÀeÉð £ËPÀgÀgÉAzÀÄ £ÉêÀÄPÀUÉÆAqÀÄ PÉ®¸À ¤ªÀð»¸ÀÄwÛzÁÝgÉ, ¸ÀzÀj 84, 31 ªÀÄvÀÄÛ 11 ªÀÄA¢ £ËPÀgÀjUÉ ¹’zÀeÉð ºÀÄzÉÝ ¤ÃqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è ²æÃ.£ÁUÀ¨sÀƵÀtgÀªÀgÀ£ÀÄß ¥ÀjUÀt¸ÀzÉà EgÀĪÀÅzÀjAzÁV ¸ÀzÀjgÀªÀjUÉ ¹’zÀeÉð ºÀÄzÉÝUÉ ¨ÉÃPÁVgÀĪÀ J¯Áè CºÀðvÉUÀ¼ÀÄ EzÀÝgÀÆ ¸ÀzÀjgÀªÀjUÉ C£ÁåAiÀĪÁVgÀÄvÀÛzÉ, 84, 31 ªÀÄvÀÄÛ 11 ªÀÄA¢ £ËPÀgÀjUÉ ¹’zÀeÉð ºÀÄzÉÝ ¥ÀjUÀt¹zÀAvÉ ¸ÀzÀjgÀªÀjUÀÆ 10 ªÀµÀð ¥ÀÆtðUÉÆAqÀ ¢£ÁAPÀ¢AzÀ C£ÀéAiÀĪÁUÀĪÀAvÉ ¹’zÀeÉð ºÀÄzÉÝUÉ ¥ÀÄ£Àgï £ÉêÀÄPÀ ªÀiÁqÀĪÀÅzÀÄ.”
4. In guise of implementing the resolution, Administrative Officer referring to the Board of Management meeting held on 26.05.2016 has confirmed the minutes of Board meeting held on 25.01.2016. Thus, an endorsement has been issued on 23.06.2016 to the extent that petitioner is not entitled to benefit of regularisation of service to Group ‘C’ on par with others who were appointed in the years 1995 to 1998, whereas impugned order dated 23.06.2016 is silent in respect Board Resolution dated 13.06.2016 which is in favour of petitioner.
5. Learned counsel for the petitioner submits that the impugned action read with factual aspects of the case in hand and so also the persons who were appointed subsequent to the petitioner have been regularized to group ‘D’ post and later, their services were regularized against group ‘C’ post and extended all benefits. In the order dated 23.06.2016 no reasons have been assigned as to why the petitioner’s grievance has not been considered and the persons who are appointed subsequent to the appointment of petitioner, have been regularized. In view of these facts and circumstances, there is discrimination among the employees while extending the benefit of regularisation. Supreme Court in the case of Union of India V/s. Central Administrative Tribunal reported in 2019 4 SCC 290 held that non- regularizing senior person’s service and regularizing of junior person’s amounts to discrimination. Paragraphs 18 to 20 are reproduced as under:
“It is of relevance to consider the directions rendered by a Constitution Bench of this Court in Uma Devi.P K Balasubramanyan, J., speaking for the Court, held thus:
"53...In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise 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. 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."
19. The directions issued in Uma Devi have been considered by subsequent benches of this Court. In State of Karnataka v. M L Kesari, a two-Judge Bench of this Court held that the "one-time measure" prescribed in Uma Devi must be considered as concluded only when all employees who were entitled for regularisation under Uma Devi, had been considered. Justice R V Raveendran, who wrote the opinion of the Court, held: (M.L.Kesari, SCC PP.250- 51, paras 9-11) "9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight.
In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one- time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered.
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 regularisation 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 regularise 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 regularisation. The fact that the employer has not undertaken such exercise of regularisation 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 regularisation in terms of the above directions in Umadevi as a one-time measure.
"20. The judgment of this Court in Uma Devi does not preclude the claims of employees who seek regularization after the exercise has been undertaken with respect to some employees, provided that the said employees have completed the years of service as mandated by Uma Devi. The ruling casts an obligation on the State and its instrumentalities to grant a fair opportunity of regularization to all such employees which are entitled according to the mandate under Uma Devi and ensure that the benefit is not conferred on a limited few. The subsequent regularization of employees who have completed the requisite period of service is to be considered as a continuation of the one-time exercise.”
6. In view of these facts and circumstances, Annexure M is set aside. Concerned authority is hereby directed to extend the benefit of regularisation to the post of Group ‘C’ to the petitioner at par with the persons who are appointed subsequent to the petitioner read with resolution.
The above exercise shall be completed within a period of three months from the date of receipt of this order, reserving liberty to set-right service conditions of the petitioner relating to promotion to the group-C cadre and also calculate pay of the petitioner if there is any difference, the same shall be adjusted depending upon the calculation.
Sd/- JUDGE SB