Karnataka High Court
Karnataka Veterinary Animal vs Sri. Nagendra S G on 10 January, 2022
Bench: S.Sujatha, Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
W.A.No.1185/2021 (S - RES)
BETWEEN :
KARNATAKA VETERINARY ANIMAL
& FISHERIES SCIENCES UNIVERSITY,
REP BY ITS REGISTRAR
NANDINAGAR, P.B.NO.6,
BIDAR-565 401 ...APPELLANT
(BY SMT.VAISHALI HEGDE, ADV.)
AND :
1. SRI NAGENDRA S.G.,
S/O GOVINDAPPA
AGED ABOUT 41 YEARS
WORKING AS ASSISTANT
VETERINARY COLLEGE, BENGALURU
2. SRI DHANANJAYA S.R.,
S/O RANGEGOWDA
AGED ABOUT 42 YEARS
WORKING AS LAB ASSISTANT
VETERINARY COLLEGE, HASSAN
3. SMT.VIMALA K.K.,
W/O LOKESH J.C.,
AGED ABOUT 41 YEARS
WORKING AS ASSISTANT
VETERINARY COLLEGE, HASSAN
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4. KUMARI JYOTHI
D/O S.T.DEVADATTA
AGED ABOUT 43 YEARS
WORKING AS ASSISTANT
VETERINARY COLLEGE,
BENGALURU
5. SRI MANIKAPPA
S/O REVANASIDDAPPA
AGED ABOUT 42 YEARS
WORKING AS ASSISTANT
VETERINARY COLLEGE,
BENGALURU
6. SRI NAWAZ PASHA A.,
S/O LATE AMMER JAN B.,
AGED ABOUT 35 YEARS
WORKING AS ASSISTANT
DAIRY SCIENCE COLLEGE,
BENGALURU
7. SRI SUNIL KUMAR PATIL
S/O SUBHASHRAO PATIL
AGED ABOUT 44 YEARS
WORKING AS ASSISTANT
OFFICE OF THE COMPTROLLER
KARNATAKA VETERINARY ANIMAL
& FISHERIES SCIENCES UNIVERSITY
NANDINAGAR, BIDAR
8. SRI SOMESHWARA
S/O RAMASHETTY HAVASHETTY
AGED ABOUT 43 YEARS
WORKING AS ASSISTANT
OFFICE OF THE COMPTROLLER
KARNATAKA VETERINARY ANIMAL
& FISHERIES SCIENCES UNIVERSITY
NANDINAGAR, BIDAR
9. SRI JAIKISHAN
S/O KARABASAPPA MALLI
AGED ABOUT 44 YEARS
WORKING AS ASSISTANT OFFICE
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OF THE ESTATE OFFICER
KARNATAKA VETERINARY ANIMAL
& FISHERIES SCIENCES UNIVERSITY
NANDINAGAR, BIDAR
10 . SMT.PARIMALA
D/O SHIVAPPA SAJJANSHETTY
AGED ABOUT 44 YEARS
WORKING AS ASSISTANT
VETERINARY COLLEGE, BIDAR
11 . SRI SANTHOSH KUMAR
S/O APPARAO, AGED ABOUT 41 YEARS
WORKING AS ASSISTANT
OFFICE OF THE ESTATE OFFICER
KARNATAKA VETERINARY ANIMAL
& FISHERIES SCIENCES UNIVERSITY
NANDINAGAR, BIDAR
12 . SRI RAGHAVENDRA R.,
S/O RAMACHANDRAPPA S.,
AGED ABOUT 43 YEARS
WORKING AS ASSISTANT
VETERINARY COLLEGE, SHIVAMOGGA
13 . SRI GNANESH B.,
S/O SHANKARAPPA
AGED ABOUT 48 YEARS
WORKING AS MESSENGER
VETERINARY COLLEGE,
SHIVAMOGGA ...RESPONDENTS
(BY SRI RAVIVARMA KUMAR, SENIOR COUNSEL A/W
SMT.BELLE RAVIVARMA, ADV.)
THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE
WRIT APPEAL AND SET ASIDE THE FINAL ORDER DATED
16.07.2021 PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.NO.34001/2019 AND CONSEQUENTLY DISMISS THE SAID
WRIT PETITION.
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THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra-Court appeal is filed by the appellant -
University challenging the order dated 16.07.2021
passed by the learned Single Judge in
W.P.No.34001/2019, whereby the writ petition filed by
the respondents herein has been allowed quashing the
endorsement dated 26.06.2019 at Annexure - A,
directing the appellant - University to consider the cases
of the respondents herein for regularization and to pass
appropriate orders within six months from the date of
receipt of the copy of the order.
2. Based on the order dated 06.08.2005 and
the Notification dated 02.03.2006, issued by the
appellant - University respondents herein were
appointed for non-teaching posts against the sanctioned
vacant posts and their services were continued in the
appellant - University from time to time for more than
10 years. The details of the same are as under:-
Sl. Name Post Place of Date of initial
No. working appointment
1. Nagendra S.G Assistant Veterinary 5.8.2005
College,
Bengaluru
2. Dhananjaya S.R. Lab Veterinary 20.10.2009
Assistant College,
Hassan
3. Vimala K.K. Assistant Veterinary 14.11.2007
College,
Hassan
4. Kumari Jyothi Assistant Veterinary 13.9.2004
College,
Bengaluru
5. Manikappa Assistant Veterinary 23.04.2007
College,
Bengaluru
6. Nawaz Pasha Assistant Dairy Science 14.06.2006
College,
Bengaluru
7. Sunil Kumar Patil Assistant Office of the 01.07.2005
Comptroller,
KVA & FS
University,
Bidar
8. Someshwara Assistant Officer of the 01.04.2005
Comptroller,
KVA & FS
University,
Bidar
9. Jaikishan Assistant Office of the 24.11.2005
Estate Officer,
KVA & FS
University,
Bidar
10. Parimala Assistant Office of the 01.02.2006
Dean,
Veterinary
College, Bidar
11. Santhosh Kumar Assistant Office of the 05.05.2007
Estate Officer,
KVA & FS
University,
Bidar
12. Raghavendra R., Assistant Officer of the 01.04.2007
Dean,
Veterinary
College,
Shimoga
13. Gnanesh B., Messenger Office of the 01.07.2007
Dean,
Veterinary
College,
Shimoga
3. W.P.Nos.30685-30704/2016 filed by
respondents herein seeking quashing of the Notification
dated 07.07.2015, whereby the appellant - University
had called for applications for recruitment inviting
applications from eligible candidates for various posts,
got disposed of by order dated 19.03.2019 reserving
liberty to the respondents herein to make fresh
representations seeking regularization. Pursuant to
which, the respondents herein submitted applications
seeking regularization of their services. The appellant -
University by an endorsement dated 26.06.2019 has
clarified that regularizing the respondents herein in
their respective posts is not permissible under law,
against which W.P.No.34001/2019 was filed by the
respondents herein before this Court seeking direction
to the appellant - University to regularize their services
as against the posts held by them and for quashing of
the said endorsement dated 26.06.2019. The learned
Single Judge by order dated 16.07.2021 having allowed
the writ petition quashing the endorsement dated
26.06.2019, this appeal is filed by the appellant -
University.
4. Learned counsel Smt. Vaishali Hegde
appearing for the appellant - University submitted that
the respondents herein were appointed between 2004
and 2009 with a clear understanding that their
appointments were temporary. A newly established
appellant - University was not in a position to make
permanent appointment at that point of time and hence,
the appointments were made on contractual basis as a
stop-gap arrangement till permanent appointments were
made after following due process of recruitment and
selection by getting the necessary approval from the
Government. Learned counsel submitted that appellant
- University has no power to regularize the services of
the respondents unless the Government approves the
same. In the absence of the Government arrayed as a
party to the proceedings, any decision taken by the
appellant - University would be futile exercise muchless
no decision could be taken by the appellant - University
in such matters. Having considered all these aspects in
the light of the judgment of the Hon'ble Apex Court in
the case of State of Karnataka & others Vs. Uma
Devi & others reported in (2006) 4 SCC 1, the
appellant - University has rejected the representations
of the respondents herein which has not been
appreciated by the learned Single Judge. Thus, the
learned Single judge has erred in directing the appellant
- University to consider the case of the respondents
herein for regularization on the basis of the Hon'ble
Apex Court decision in Uma Devi & others, supra. No
regularization dehorse the recruitment and selection
process could be made. The respondents cannot seek
for regularization by-passing Articles 14 and 15 of the
Constitution of India.
5. Learned Senior Counsel Sri. Ravivarma
Kumar representing the respondents submitted that the
respondents herein were appointed by the appellant -
University against the vacant posts since its inception
and are continued to work in non-teaching posts till
date. The ground now urged by the appellant -
University that it lacks competency to regularize the
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services of the respondents is wholly untenable. Inviting
the attention of the Court to the order dated 12.08.2017
(Annexure - L) issued by the appellant - University with
respect to one Sri. M. Mallesh submitted that the said
daily wage employee who had left the services was called
and re-appointed with retrospective effect in terms of
the decision of the Management dated 01.04.2005.
Appellant - University cannot act arbitrarily
discriminating the respondents for having extracted the
work from them against sanctioned vacancies. Though
the respondents have worked continuously for more
than ten years and fulfilled all the conditions indicated
in the judgment of the Hon'ble Apex Court in the case of
Uma Devi & others, supra and Smt. G.P. Sarojamma
vs. The State of Karnataka and others
(W.P.No.80646/2011, D.D. 08.03.2021), appellant -
University denying the request of the respondents for
regularization was wholly untenable. Hence, the learned
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Single Judge has rightly allowed the writ petition and
the same deserves to be confirmed by this Court.
6. Having heard the learned counsel for the
parties and perusing the material on record, we are of
the considered opinion that the appellant - University
has appointed the respondents on the basis of policy of
appointment for non-teaching staff against sanctioned
vacant posts and have continued in employment for
more than ten years. The ground of challenge that no
Government department is arrayed as a party to the
proceedings and appellant - University lacks
competency to regularize the services of the respondents
is not supported by any valid substantial material. The
endorsement dated 26.06.2019 issued by the appellant
- University is not based on the said reasons. If any
other employee like Sri. M. Mallesh could be re-instated
by the appellant - University, the same yardstick is
applicable in other cases also. It cannot be cherry
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picked by the appellant - University to suit the
convenience inasmuch as its competency to regularize
the services of its employees. Even if such financial
approval is required, it is obligatory on the part of the
University to get such approval from the concerned and
the same cannot be raised as a ground to reject the
representation or challenge the order of the learned
Single Judge, more particularly, when no such ground
was taken in the writ proceedings. Hence, the
arguments of the learned counsel for the appellant -
University must fail.
7. 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 has
categorically held that extracting work and not
regularizing the employees would be a form of
exploitation from the hands of the State. It is apt to
refer to the paragraph No.7 which reads as under:-
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"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
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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
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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)."
8. In Chander Mohan Negi and others vs.
State of Himachal Pradesh and others reported in
(2020) 5 SCC 732, the Hon'ble Apex Court has
considered the schemes notified by the Government
where there was a condition that such appointees
should not seek regularization/absorption. Having
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considered the services extended from time to time, in
view of the requirement of the State, and all the
appointed teachers having completed more than fifteen
years of service, the Hon'ble Apex Court directed
regularization of such teachers.
9. In the light of these judgments, the action of
the appellant - University in extracting the work from
the respondents for more than 10 years, appointing
them on contract basis for smooth functioning and
thereafter denying the regularization of their services is
wholly untenable. These aspects are extensively
analyzed by the learned Single Judge in arriving at a
conclusion.
10. What is relevant for the appellant -
University is to examine the case of the respondents in
the light of the judgment of the Constitution Bench in
Umadevi and others, supra. Having analysed these
aspects in the backdrop of the case as narrated
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hereinabove, learned Single Judge has rightly held that
the endorsement dated 26.06.2019 (Annexure -A)
issued by the appellant - University is wholly
unsustainable. We find no jurisdictional error in the
order impugned.
Appeal being devoid of merit, stands dismissed.
In view of the disposal of the appeal, all pending
I.As. stand disposed of accordingly.
SD/-
JUDGE
SD/-
JUDGE
PMR
