Karnataka High Court

Smt. G M Roopa vs The Common Cadre Committee on 21 February, 2022

Bench: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF FEBRUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

              W.P.No.13915 OF 2018(S-REG)

BETWEEN:

1.     Smt. G.M.Roopa,
       W/o H.M.Gurumurthy,
       Aged about 44 years,
       R/at 7th Ward, Harapanahalli,
       P.O. Harapanahalli-583131,
       Davanagere District.

2.     K. Prakasha,
       S/o Swageerappa,
       Aged about 42 years,
       R/at 1st Ward,
       Hospet Road,
       P.O. Harapanahalli-583131,
       Davanagere District.

3.     G. Ashok Kumar,
       S/o Hanumanthappa,
       Aged about 44 years,
       R/at Halavagalu,
       P.O. Harapanahalli,
       Davanagere district-583131.

4.     Smt. T. Leela,
       W/o Vishwanath,
       Aged about 34 years,
       R/at Rahamath Nagar,
       P.O. Harapanahalli,
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       Davanagere District-583131.        ... Petitioners

(By Sri.Sudhakar Pai, Advocate (VC))


AND:

1.     The Common Cadre Committee,
       For the Employees of Primary,
       Co-operative Agricultural and
       Rural Development Bank,
       Karnataka State,
       Represented by its Secretary,
       Alur Venkat Rao Road,
       Chamarajpet,
       Bengaluru-560 018.

2.     The Manager,
       Harapanahalli Taluk
       Primary Co-Operative
       Agricultural and Rural
       Development Bank Ltd.,
       P.O. Harapanahalli,
       Davanagere Districrt-583131.        ... Respondents

(By Sri.P. Anand Advocate (VC))

      This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to Direct the R1 to
regularize the service of the petitioners, forthwith, with
extension of regular pay scales and all consequential
benefits arising therefrom and etc.

       This writ petition, coming on for preliminary hearing
in 'B' group, this day, the Court, made the following:
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                             ORDER

In this writ petition the petitioners have sought

for the following reliefs:

"A writ of mandamus, directing the 1st respondent - Common Cadre Committee, to regularize the services of the petitioners, forthwith, with extension of regular pay scales and all consequential benefits arising therefrom."

2. The case of the petitioners is that they were

appointed by the second respondent - Bank on daily

wage basis between the years 1996 to 2005, on

different dates as Typist cum Accountant, Nigh

Watchman, Clerk and Typist, respectively. Even

though they have been appointed on daily wage basis,

they have been continued in service for more than 10

years. Since their services has not been regularized,

they approached the second respondent - Bank. In

the meantime, the first respondent - the Common

Cadre Committee has requested the second

respondent - Bank on 12.03.2013 to furnish the

details in respect of the daily wage employees who

have continuously served for more than 10 years. In

response to the same the second respondent - Bank

has furnished the list of the employees working in its

bank on daily wage basis and who have completed 10

years of service vide Annexure-F dated 16.03/2013.

Thereafter, the first respondent has not taken any

decision to regularize the services of the petitioners.

Since no action has been taken by the first respondent

for regularizing the services of the petitioners, the

petitioners are before this Court.

3. Sri M.Sudhakar Pai, the learned counsel

appearing for the petitioners has submitted that the

petitioners have been appointed on daily wage basis

from 1996 to 2005 on different dates and they were

working in different posts in the second respondent -

Bank without any break. Even though their

appointment is against a clear vacancy and they have

completed a period of more than 10 years, their

services has not been regularized.

4. He further contended that the first respondent

itself has requested the second respondent - Bank to

furnish the details of the petitioners to regularize their

services. Pursuant to that the second respondent -

Bank has furnished the particulars of the petitioners to

the first respondent. Thereafter no action has been

taken to regularize their services.

5.It is his further contention that in view of the

judgment of the Hon'ble Apex Court in the case of

SECRETARY TO THE STATE OF KARNATAKA AND

OTHERS vs. UMADEVI reported in (2006) 4 SCC 1,

the petitioners are entitled for regularization of their

services.

6. He further contended that in similar

circumstances, in respect of the persons who are

working in the Co-operative Banks, this Court in

W.P.No.1338/1998 and other connected petitions,

disposed of on 12.11.1998 has directed the Common

Cadre Committee to consider the case of the

petitioners therein, who were the employees of the

Taluk Primary Co-operative Agricultural and Rural

Development Banks for regularization. Therefore, he

sought for allowing the writ petition.

7. Heard the learned counsel for the petitioners

and perused the writ papers.

8. It is not in dispute that the petitioners were

appointed on daily wages on different dates from 1996

to 2005. They are working in the second respondent

- Bank in different posts. Even though they have been

appointed on daily wage basis, their services has been

continued without any break, till today. Since the first

respondent has taken a decision to regularize the

services of the employees who have completed 10

years of service, on 12.03.2013 requested the second

respondent - Bank to submit the details of the daily

wage employees working in its bank and who have

completed 10 years of service. Pursuant to that, the

second respondent - Bank has submitted the list of

the daily wage employees working in its bank and who

have completed 10 years of service. Even the Hon'ble

Apex Court in the case of UMADEVI (supra) has held

as hereinbelow:

"52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the

question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.

53. One aspect needs to be clarified.

There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 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 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

9. In the subsequent judgment of the Hon'ble

Apex Court in the case of SHEO NARAIN NAGAR

AND OTHERS vs. STATE OF UTTAR PRADESH AND

ANOTHER reported in (2018) 13 SCC 432 at

paragraph 7 it has held as follows:

"7. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L & S) 753] has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma

Devi (supra) has been ignored and conveniently overlooked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India [D.S. Nakara v. Union of India, (1983) 1 SCC 305: 1983 SCC (L & S) 145 : AIR 1983 SC 130] from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of downtrodden

class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra).

Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."

10. Even a Co-ordinate Bench of this Court in

W.P.No.1338/1998 disposed of on 12.11.1998 has

directed the Common Cadre Committee to regularize

the services of the petitioners who were similarly

placed. Since the case of the petitioners has not been

considered by the first respondent, it is suffice for this

Court to direct the first respondent to consider the

case of the petitioners for regularization, keeping in

view the law laid down by the Hon'ble Apex Court in

the case of UMADEVI (supra) and SHEO NARAIN

NAGAR (supra) and the order passed by a Co-

ordinate Bench of this Court in W.P.No.1338/1998 and