B N Suresh Babu vs The Principal Secretary
2022 Latest Caselaw 5432 Kant

                           1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MARCH, 2022

                       PRESENT

          THE HON'BLE MR.JUSTICE G.NARENDAR

                          AND

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

      WRIT PETITION NO. 10550 OF 2021(S-KSAT)
                       C/W
      WRIT PETITION NO.18762 OF 2021 (S-KSAT)

IN W.P.NO.10550/2021

BETWEEN:

B.N.SURESH BABU
S/O LATE SRI NANJUNDAIAH
AGED ABOUT 60 YEARS
RESIDING AT
VISHVESHWARAIH EXTENSION
2ND CROSS, M.G.ROAD
CHIKKABALLAPURA-562 101.
                                    ....PETITIONER

(BY SRI. SUBRAMANYA BHAT M., ADVOCATE)

AND:


1.     THE PRINCIPAL SECRETARY
       HORTICULTURE DEPARTMENT
       M.S.BUILDINGS
       BANGALORE-01.

2.     THE COMMISSIONER
       OF HORTICULTURE
                           2




     LALBAGH
     BANGALORE-560 076.

3.   DEPUTY DIRECTOR OF HORTICULTURE
     HORTICULTURE DEPARTMENT
     OFFICE OF JILLA PANCHAYATH
     TUMKUR-572 201.

4.   SENIOR ASSISTANT DIRECTOR
     HORTICULTURE DEPARTMENT
     (STATE SECTOR)
     TUMKUR-572 201.
                                     ....RESPONDENTS

(BY SRI. VENKATASATHYANARAYANA, HCGP.,)


     THIS WRIT PETITION NO.10550/2021 IS FILED UNDER
ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DATED          06.01.2020
PASSED IN APPLICATION NO.3651/2017 ANNEXURE-C AS
THE SAME SUFFERS FROM ERROR APPARENT ON THE FACE
OF THE RECORD AND ETC.,


IN W.P.NO.18762/2021:

BETWEEN:

B.N.SURESH BABU
S/O LATE SRI NANJUNDAIAH
AGED ABOUT 60 YEARS
RESIDING AT
VISHVESHWARAIH EXTENSION
2ND CROSS, M.G.ROAD
CHIKKABALLAPURA-562 101.
                                    ....PETITIONER

(BY SRI. SUBRAMANYA BHAT M., ADVOCATE)
                             3




AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY THE
       CHIEF SECRETARY
       VIDHANA SOUDHA
       BANGALORE-560 001.

2.     THE PRINCIPAL SECRETARY
       HORTICULTURE DEPARTMENT
       M.S.BUILDINGS, BANGALORE-01.

3.     THE DIRECTOR
       OF HORTICULTURE
       LALBAGH, BANGALORE-560 076.

4.     SENIOR ASSISTANT DIRECTOR
       HORTICULTURE DEPARTMENT
       (STATE SECTOR)
       TUMKUR-572 201.

5.     DEPUTY DIRECTOR OF HORTICULTURE
       HORTICULTURE DEPARTMENT
       OFFICE OF JILLA PANCHAYATH
       TUMKUR-572 201.
                                    ....RESPONDENTS

(BY SRI. VENKATASATHYANARAYANA, HCGP.,)

    THIS WRIT PETITION NO.18762/2021 IS FILED UNDER
ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO QUASH THE ORDER DATED 06.01.2020
PASSED IN APPLICATION NO.6116/2016 ANNEXURE-D AS
THE SAME SUFFERS FROM ERRORS APPARENT ON THE
FACE OF THE RECORD AND ETC.,

     THESE PETITIONS ARE BEING HEARD AND RESERVED
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, M.G.S.KAMAL J, MADE THE FOLLOWING:
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                              ORDER

Petitioner and the respondents in these writ

petitions are one and the same.

2. In writ petition No.10550/2021 the

petitioner is seeking the following reliefs;

"(a) Issue writ of certiorari quashing the order dated 06.01.2020 passed in Application No.3651/2017 (Annexure-C) as the same suffers from error apparent on the face of the record;

(b) Issue a writ of mandamus or any other order or direction, directing the respondents to reinstate the Applicant to the post of Second Division Assistant forthwith with a further direction to pay him the wages from 24.01.2017."

3. In Writ petition No.18762/2021 the

petitioner is seeking the following reliefs;

"(a) Issue a writ of certiorari quashing the order dated 06.01.2020 passed in Application No.6116/2016 (Annexure-D) as the same suffers from error apparent on the face of the record;

(b) Issue a writ of mandamus or any other order or direction, directing the respondents to regularize the services of the applicant in the post of Second Division Assistant with effect from 01.07.1995 as has been done in the case of Sri.

Cheluvaraju and Hanumanthappa and grant all the consequential benefits such as arrears of salary, increment, revision of pay scale, seniority etc from 01.07.1995."

4. Though the aforesaid orders are passed by

the Tribunal in two different applications filed by the

petitioner, since the facts and circumstances are one

and the same, these two writ petitions are taken up for

analogous hearing and disposal.

5. Facts leading upto filing of the present

petitions are ;

(a) that the petitioner joined the services of 2nd

respondent on daily wage basis on 01.07.1985. That

by ordered dated 09.02.1994 services of the petitioner

were regularized in the post of Second Division

Assistant effective from 01.01.1993 in the pay scale of

960-1760/- in terms of the Government Order dated

06.08.1990. However, the said benefit was withdrawn.

(b) that the petitioner was illegally kept under

suspension by order dated 29.07.1997 on the

allegation of he furnishing wrong information and

claiming regularization of his services and that he was

also responsible for regularization of certain other daily

wage employees by furnishing incorrect information. In

furtherance thereof, the petitioner was issued with a

show cause notice dated 11.08.1997 as to why order

of regularization should not be cancelled.

(c) that the petitioner challenged the said show

cause notice by filing Application No.4208/1997 and

Application No.4463/1997. Subsequently, the

petitioner was reinstated to the post of Second Division

Assistant pending departmental enquiry against him

vide order dated 25.02.1999. In the meanwhile, about

445 daily wage employees who were appointed on or

after 01.07.1984 had filed W.P.Nos.33541-571/1998

before this Court seeking regularization of their

services. The said writ petitions were allowed by order

dated 15.12.1999. Another set of employees had filed

W.P.Nos.39117-76/1999 claiming similar reliefs, which

were also allowed by this Court following the earlier

order. Besides, two daily wage employees namely,

Sri.Cheluvaraj and Sri.Hanumappa who were appointed

as such after 01.07.1985 with the 3rd respondent were

also the petitioners in the above writ petitions. The

Government had filed writ appeals against the order

passed by this Court in the aforesaid writ petitions

which resulted in dismissal. The Government had

carried the matter before the Apex Court by filing

Special Leave Petitions which were also dismissed as

per order dated 27.02.2005. Subsequently, in

compliance with the order of the Hon'ble Apex Court,

the Director, Horticulture, regularized the services of

aforesaid Sri.Cheluvaraj and Sri.Hanumappa, the daily

wage employees who had joined services after

01.07.1984 by order dated 19.06.2014.

(d) that in the meanwhile, Respondent No.3 by

order dated 08/10.02.2006 withdrew the order by

which the petitioner was regularized and directed the

petitioner to continue as a daily wage employee. It was

further ordered to recover the pay and allowances paid

to the petitioner after his services where regularized

from the daily wages payable to him. This order was on

the premise that the petitioner was appointed on a

daily wage basis after 01.07.1984 and such employees

were not entitled for the regularization.

(e) that being aggrieved by the above order,

the petitioner filed application No.1629/2006 which

was allowed in part in so far as recovery of pay and

emoluments already paid are concerned. Petitioner

challenged the said order in W.P.No.26647/2012 which

was dismissed by order dated 01.10.2012.

(f) that though the Tribunal had declined to

interfere with the order dated 08/10.02.2016 by which

the regularization of services of the petitioners were

withdrawn yet the petitioner was entitled to seek

regularization of their services in as much as aforesaid

employees Sri. Cheulvaraj and Hanumappa who were

appointed on and after 01.07.1984 were given the

benefit of regularization. And since the petitioner was

similarly situated made representation dated

01.06.2015 to the Director of Horticulture pointing out

the orders passed in W.P.Nos.33541-71/1998 and in

the S.L.P.No.9573/2007 and sought for regularization

of his services. However, the Director, Horticulture by

order dated 14.07.2015 rejected the request of the

petitioner for regularization on the premise that the

order passed by the Apex Court had to be confined

only to the parties concerned therein and no such

benefit could be extended to the petitioner. Petitioner

further informed that in view of order withdrawing his

earlier regularization having been upheld by the

Tribunal and by this Court, he was not entitled for

regularization. This constrained the petitioner to file

the writ petition in W.P.No.3733/2016 which came to

be rejected reserving liberty to approach the Tribunal.

Accordingly, the petitioner filed the above application

No.6116/2016 before the Tribunal challenging the

aforesaid order dated 14.07.2015 and also sought

direction to regularize his services to the post of

Second Division Assistant w.e.f. 01.07.1995 as done in

the case of Sri. Cheluvaraj and Hanumappa and

consequential financial and other benefits. The said

application came to be rejected by aforesaid order

dated 06.01.2020.

(g) that during the pendency of the aforesaid

application before the Tribunal, the Respondent No.3

said to have orally directed the Respondent No.4 to

relieve the petitioner from daily wage post of Group -

C. Accordingly, Respondent No.4 orally relieved the

petitioner from the post w.e.f. 24.01.2017 and he was

not allowed to enter the office premises. The petitioner

filed two interlocutory applications before the Tribunal

in the aforesaid application No.6116/2016 seeking to

implead Respondent No.3 and for direction to the

Respondent No.4 not to relieve the petitioner from the

daily wage group during the pendency of the main

application, which the tribunal declined to grant.

Eventually petitioner was relieved from his daily wage

post.

(h) that the petitioner had filed an application

dated 14.03.2017 under Right to Information Act,

seeking information about the reasons for refusal of

employment by issuing oral order. To which he

received a communication dated 05.05.2017 from

Senior Assistant Director of Horticulture, State Sector,

Tumkur, informing the petitioner that after withdrawal

of benefit of regularization, he was orally ordered to be

posted as Literate Assistant in the office of Senior

Assistant Director of Horticulture, State Sector, Tumkur

and thereafter an oral direction was issued, by which

he was posted to Indira Horticulture Form,

Badavanahalli, Madugiri Taluk on 24.01.2017 and that

the petitioner did not report for the duty.

(i) that the aforesaid information was unjust and

incorrect, in as much the petitioner in his

representation dated 23.01.2017 had stated that he

had not been issued any oral direction to report for

duty as mentioned. It was further stated by the

petitioner that after the post of Assistant Director of

Horticulture was abolished in the Indira Horticulture

Form, Badavanahalli, Madugiri Taluk, the post of

Second Division Assistant held by him was also

abolished and consequently the petitioner was

transferred to the 4th respondent. That the petitioner

had signed the attendance register from 23.06.2006 to

23.01.2017 which he had obtained under RTI.

(j) However, petitioner made a representation

dated 07.03.2017 to the Commissioner, Horticulture

that he had been arbitrarily prevented from working as

a daily wage employee in the office of the respondent

No.4. In response thereof, the petitioner received an

endorsement dated 06.06.2017 alleging though the

petitioner was directed to report to the duty at

Badavanahalli, Madugiri Taluk, he did not report to the

duty and remained unauthorized to the duty till

issuance of the endorsement. Being aggrieved by the

said endorsement, the petitioner filed an application

No.3651/2017 before the Tribunal seeking

reinstatement to the post on daily wage.

(k) That during the pendency of the above

application, the petitioner was again reinstated as daily

wage employee and was posted to Needuvalalu

Horticulture area, Tumkur Taluk.

(l) That the Tribunal without considering the

aforesaid factual aspect of the matter proceeded to

pass separate orders dated 06.01.2020 dismissing the

Application Nos.6116/2016 and 3651/2017.

6. Being aggrieved by the said orders, the

petitioner has filed the writ petitions in

W.P.No.18762/2021 and W.P.No.10550/2021

respectively.

7. Learned counsel for the petitioner reiterating

the grounds urged in the writ petition submitted;

(a) that the tribunal grossly erred in not

appreciating the case of the petitioner of he

being entitled for regularization in terms of

the scheme framed by the respondent

further to the directions issued in writ

petition Nos.33541-571/1998 and

connected writ petitions particularly with

persons similarly situated with that of the

petitioners.

(b)   that   though      the     petitioner     was

appointed as         daily wage employee on

01.07.1985      as       per         order    dated

08/10.02.2006        benefit    of    regularization

which was granted to the petitioner had

been withdrawn on the alleged premise of

he furnishing incorrect information without

there being any enquiry thereon.

(c) that the tribunal though has held the

petitioner remained absent unauthorisedly

has not taken into consideration the

contents of representations dated

23.01.2017 and 07.03.2017, in which the

petitioner has categorically stated that he

has not been issued any direction much

less oral direction to report to the duty at

Indira Horticulture Form, Badavanahalli,

Madhugiri Taluk and that the said post was

abolished transferring the petitioner to the

office of the respondent No.4 which fact

was established by the petitioner by

producing attendance register kept in the

office of the respondent No.4 belying the

case of the respondents.

(d) that no material is produced by the

respondents in support of their contention

of both respondent orally ordering the

petitioner to be posted as Literate Assistant

in his office and that the petitioner not

reporting for the duty remaining

unauthorizedly absent. Thus, in the

absence of any such material, tribunal

ought not to have presumed the things

adverse to the interest of petitioner.

(e) the tribunal erred in not noticing that

the petitioner was orally refused

employment constraining him to

immediately file interlocutory applications,

though not found favours constraining the

petitioner to file separate application.

(f) that the tribunal erred in relying upon

the allegations made against the petitioner

by the respondents of misconduct and of

criminal cases being foisted against the

petitioner without any substance or any

disciplinary action.

Thus, he seeks grant of relief by allowing the writ

petitions.

8. Sri. Venkata Sathyanaraya, learned HCGP for

the respondents justifying the orders passed by the

Tribunal submitted that the petitioner is not entitled for

regularization of his service merely because of

regularization of certain persons who were similarly

situated to that of the petitioner. That the persons

referred to by the petitioner were parties to the said

writ petition and that the orders passed in the said

petition were confined only to the parties thereof and

the petitioner not being party to the writ petition

cannot claim any benefit of regularization. That the

petitioner was involved in several acts of misconduct

including furnishing of incorrect information to the

higher officials. That the Tribunal having taken note of

the records and conduct of the petitioner has rightly

dismissed his application warranting no interference.

9. Heard learned counsel for the parties.

Perused the records.

10. The point that arises for consideration in

this matter is ;

"Whether the petitioner is entitled for regularization of his service and consequent benefit thereof."

11. The issue with regard to regularization of

daily wage employee has been dealt with the judgment

by the Apex Court in the case of SECRETARY, STATE

OF KARNATAKA VS. UMA DEVI AND OTHERS

reported in AIR 2006 SC 1806. Further the Apex

Court in the Civil Appeal No.3338/2014 while dealing

with the order dated 26.03.2007 passed by this Court

in contempt proceedings registered as

C.C.C.No.669/2006, whereby, this Court after holding

the appellants therein prima facie guilty of commission

of contempt had granted two weeks time to comply

with the order and held that similarly placed employees

having been regularized by State and in case of some

of them such regularization being after the decision in

UMA DEVI's case, declined to countenance the stand of

appellants therein in refusing to regularize the

respondents-employees therein.

12. In the instant case, there is no dispute of the

fact that petitioner was appointed as a daily wage

employee on 01.07.1985 that his employment was

regularized in the post of Second Division Assistant

w.e.f. 01.01.1993. Though the petitioner was kept

under suspension by order dated 29.07.1997 on the

grounds of he furnishing wrong information to claim

regularization, the State Government had subsequently

by order dated 04.06.2000 withdrew the benefit of

regularization holding that the petitioner was initially

appointed on daily basis on 01.07.1985 and not on

01.07.1982 as claimed by him. Assuming that to be so,

even as contended by the petitioner that he was

appointed from 01.07.1985, he was entitled for

regularization as he has completed ten years of service

and two of his co-employees namely, Sri. Cheluvaraj

and Hanumappa who had joined the service on daily

wage basis on 01.07.1986 and 01.07.1985 respectively

were regularized. No reasons of any nature whatsoever

are assigned for rejecting the request of the petitioner

to extend the benefit of regularization except stating

that he was not party to the writ petition Nos.33541-

571/1998. Once, the petitioner satisfied the

requirement of service for sufficient number of years,

he ought to have been extended the benefit of

regularization. The Tribunal has not adverted to this

aspect of the matter except noting the objections of

the respondent to the said effect.

13. Further, the other reasons which appears to

have weighed in the mind of tribunal is that the

purported wrong information furnished by the

petitioner regarding his joining the institution and the

petitioner not satisfying the department service

conditions. This reasoning of the tribunal is without any

enquiry, evidence or the report.

14. Further, the tribunal while dealing with the

oral termination of the petitioner, the issue which is

subject matter of application No.3651/2017 at para 6

referring to the letter dated 03.03.2017 issued by the

Assistant Director, Horticulture, Badavanahalli,

Madugiri taluk to the Senior Assistant Director of

Horticulture (State Zone) Tumkur, regarding

ascertaining the duty report made by the petitioner has

held that "it is crystal clear that the applicant never

went to the said Indira Horticulture Form and reported

to duty" and concluded that the applicant through out

his service has not acted bonafidely.

15. As rightly contended by the learned counsel

for the petitioner a close perusal of aforesaid

communication dated 03.03.2017 which was issued in

response to the letter dated 22.02.2017 by Senior

Assistant Director of Horticulture (State Zone) Tumkur

to the Assistant Director, Horticulture area,

Badavanahalli, Madugiri taluk, calling for the report

regarding the attendance of petitioner at his office for

the month of January, 2017, it was categorically stated

that the said office has not received any order

regarding the petitioner requiring to attend the duties

at his office. In that view of the matter, the conclusion

arrived at by the Tribunal at paragraphs 6 and 7 of the

impugned order passed in Application No.3651/2017

declining the relief sought for by the petitioner cannot

be sustained. As the same is passed without

application of mind to the material evidence made

available by the petitioner.

16. For the foregoing reasons, following:

ORDER

(1) Writ Petition No.10550/2021 is allowed.

Order dated 06.01.2020 passed in

Application No.3651/2017 at Annexure-C is

set aside.

(2) Writ petition No.18762/2021 is

allowed. Order dated 06.01.2020 passed in

Application No.6116/2016 at Annexure-D is

set aside.

(3) Respondents are directed to consider

the case of the petitioner on parity with the

cases of the said Sri.Cheluvaraj and

Sri.Hanumappa and further consider

regularizing the service of the petitioner

w.e.f. 01.07.1995 as has been done in the

case of Sri. Cheluvaraj and Hanumappa

and grant all the consequential financial

benefits as he may be entitled to in

accordance with law, within eight weeks

from the date of receipt of this order.

(4) Since the petitioner is aged 60 years

even as on the date of filing of the present

writ petition grant of relief of reinstatement

would not arise.

Sd/-

JUDGE

Sd/-

JUDGE RU