IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.366 OF 2019 (S-RES) BETWEEN:
1. STATE OF KARNATAKA RURAL DEVELOPMENT AND PANCHAYATH RAJ DEPARTMENT M.S. BUILDING DR. B.R. AMBEDKAR ROAD BENGALURU-1 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. THE DIRECTOR RURAL WATER SUPPLY AND SANITATION MISSION NO.365, 3RD FLOOR M.S. BUILDING DR. B.R. AMBEDKAR ROAD BENGALURU-1 (NOW RE-DESIGNATED AS COMMISSIONER RURAL DRINKING WATER & SANITATION DEPARTMENT 2ND FLOOR, E BLOCK KHB COMPLEX, CAUVERY BHAVAN K.G. ROAD BENGALURU-560009 3. THE CHIEF EXECUTIVE OFFICER TUMKURU DIST., TUMKURU-571 214 4. THE EXECUTIVE OFFICER TIPTUR TALUK PANCHAYATH TIPTUR, TUMAKURU DISTRICT-571 214 5. THE EXECUTIVE ENGINEER PANCHAYATH RAJ ENGINEERING DIVISION TUMKUR AND MADHUGIRI, TUMKUR-572 201 (NOW RE-DESIGNATED AS EXECUTIVE ENGINEER RURAL DRINKING WATER AND SANITATION DIVISION, TUMAKURU 6. THE LESSON FOUNDATION, NO.6991, 1ST FLOOR, 9TH MAIN 4TH B CROSS, RPC LAYOUT BANGALURU-40 ... APPELLANTS (BY SHRI Y.H. VIJAY KUMAR, PRINCIPAL GOVERNMENT ADVOCATE) AND:
1. H.S. SANTHOSH KUMAR S/O SHANKARA LINGAPPA AGED ABOUT 35 YEARS R/A HIOGAVANAGHATTA VILLAGE DASARIGHATTA POST, TIPTUR TALUK TUMKUR DISTRICT-572201 2. K.C. MADHU S/O CHANDRASHEKARAIAH AGED ABOUT 35 YEARS R/A K.B.CROSS POST, TIPTUR TALUK TUMKUR DISTRICT-571 214 ... RESPONDENTS (BY SHRI T.A. KARUMBAIAH AND SMT. P.C. VINITHA, ADVOCATES) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO CALL FOR THE RECORDS & SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NOS.58147-58148/2013 DATED 01/10/2018 AND BE PLEASED TO DISMISS THE ABOVE WRIT PETITIONS FILED BY THE RESPONDENTS 1 AND 2 HEREIN AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT I.A.No.1/2019 is filed seeking condonation of delay of 99 days in filing the appeal. Sufficient cause is made out to condone the delay. Therefore, the application for condonation of delay is allowed.
2. Heard the learned Principal Government Advocate appearing for the appellants and the learned counsel appearing for the respondents. By consent, taken up for hearing.
3. The first appellant published an advertisement inviting applications from the eligible candidates to be appointed as Block Resource Coordinators and Cluster Resource Coordinators for conducting various activities under the Scheme launched by the Government of India.
4. The respondents filed a writ petition before the learned Single Judge challenging the action of the State Government which had the effect of directing the respondents to work under the NGOs appointed by the State Government. In paragraph 6 of the impugned order, the learned Single Judge held thus:
“Be that as it may, in case if it is mentioned in the scheme to do so, it is for the respondents to do it as per the notification. Unless and until the scheme permits, it is impermissible for the respondents to create NGOs for the purpose of handing over the workers for service and maintenance. By virtue of the scheme introduced by the Union Government, these workers are permitted to work under the said Scheme and not under NGOs. The petitioners to work under the Scheme under which they have been appointed as long as the scheme continues. The payment, guarantee, terms and conditions are strictly and purely in accordance with the scheme introduced by the Union Government only.”.
5. The submission of the learned Principal Government Advocate is that the employment of the respondents was terminated on 23rd April 2012. His second submission is that under the Scheme itself it is provided that the same will be implemented by certain NGOs. He would, therefore, submit that the respondents have no right as their employment was terminated on 23rd April 2012 and therefore, there is nothing wrong with the direction issued to them to work under the NGOs. He submitted that in any event, as the respondents were appointed on the basis of a contract, the direction to continue them so long as the Scheme continues was uncalled for.
6. The learned counsel appearing for the respondents supported the impugned order. She invited our attention to the order dated 4th April 2011 (Annexure-A to the writ petition). Her submission is that the services of the respondents were found to be necessary and therefore, the learned Single Judge was justified in issuing the direction which he has issued in paragraph 9 of the impugned order.
7. We have carefully considered the submissions. The only submission made by the learned Principal Government Advocate before the learned Single Judge as recorded in paragraph 3 of the impugned order reads thus:
“Learned counsel for the respondents on instructions submits that their initial appointment was for one year and thereafter the said scheme was brought under this scheme, under which they have to work under NGOs. Hence, there is a justifiable reason for engaging the workers to work under NGOs. Therefore, the petitions may be dismissed.”
8. The appellants did not make out a case before the learned Single Judge that the employment of the respondents was already terminated. The order dated 4th April 2011 issued by the Government of Karnataka shows that the post held by the respondents were intended to be filled in only for a period of one year which period could be extended, if found necessary.
9. The appellants have now raised a contention that the employment of the respondents was terminated. Such a factual contention was not raised before the learned Single Judge. The logical consequence of this is that the employment of the respondents continued. All that the learned Single Judge has held is that so long as the employment of the respondents continues, they cannot be forced to work under the NGOs. In fact, that was precisely the second prayer made in the writ petition filed by the respondents.
10. The first prayer in the writ petition of the respondents was that the employment of the respondents be continued till the completion of the Scheme. The learned Single Judge has issued a direction that the appointment of the respondents will continue so long as the Scheme continues.
11 Though no fault can be found with the view taken by the learned Single Judge that the respondents cannot be forced to work under the NGOs, the direction to continue the employment of the respondents till the conclusion of the Scheme cannot be justified inasmuch as in view of the order dated 4th April 2011, the initial service period of one year of the respondents can be extended only if the concerned authority finds it necessary. Essentially, the appointment of the respondents is temporary in nature. Therefore, to that extent, the direction contained in paragraph 6 of the impugned order will have to be clarified. The respondents cannot claim continuation of the employment as a matter of right till the continuation of the Scheme.
12. Hence, we pass the following order:
(i) Subject to modification made of paragraph 6 of the impugned order as discussed above, no case for interference in the impugned order is made out.
(ii) The appeal is accordingly dismissed.
(iii) The pending interlocutory application does not survive for consideration and stands disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB