Karnataka High Court

Ramananda Bhat D vs The State Of Karnataka on 31 March, 2022

Bench: S.G.Pandit

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF MARCH, 2022

                      BEFORE

         THE HON'BLE MR.JUSTICE S.G.PANDIT

         WRIT PETITION NO.45569/2018 (S-RES)
                        C/W
         WRIT PETITION NO.11074/2019 (S-RES)

W.P.NO.45569/2018

BETWEEN:

SUNDARA
AGED ABOUT 44 YEARS,
S/O HANIYA,
WORKING AS PHYSICAL EDUCATION,
DIRECTOR AT SRI VENKATARAMANA,
SWAMY COLLEGE,
BANTWAL-574211,
DAKSHINA KANNADA DISTRICT,
R/AT KANCHARAMAKKI HOUSE,
KOWKRADY VILLAGE, NELLYADI POST,
PIN CODE:574229, PUTTUR TALUK,
DAKSHINA KANNADA DISTRICT.

                                        ...PETITIONER
(BY SRI V LAKSHMI NARAYANA, SR.COUNSEL A/W
 SRI PRATHAM N, ADV. FOR
 M/S. BALAJI ASSTS., ADVS.)


AND:

  1. THE STATE OF KARNATAKA
     REP. BY ITS PRINCIPAL SECRETARY,
                         2

    EDUCATION DEPARTMENT,
    (SECONDARY EDUCATION),
    M.S. BUILDING, SACHIVALAYA,
    BENGALURU-560001.

  2. THE COMMISSIONER OF COLLEGIATE EDUCATION
     PALACE ROAD,
     BENGALURU-560001.

  3. SRI VENKATARAMANA SWAMY COLLEGE
     BANTWAL-574211,
     BANTWAL TALUK,
     DAKSHINA KANNADA DISTRICT,
     REP. BY ITS PRINCIPAL.

   4. THE PRINCIPAL
      SRI VENKATARAMANA SWAMY COLLEGE,
      BANTWAL-574211,
      BANTWAL TALUK,
      DAKSHINA KANNADA DISTRICT.
                                      ....RESPONDENTS
(BY SMT. M.C.NAGASHREE, ADV. FOR R1 & R2
 SRI P.S.RAJAGOPAL, SR.COUNSEL A/W
 SRI M SUBRAMANYA BHAT, ADV. FOR R3
 SRI CYRIL PRASAD PAIS, ADV. FOR R4 )

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH ENDORSEMENT DATED 26.07.2018 (ANNX-G) AS
ARBITRARY, VIOLATIVE OF ARTICLES 14 & 16 OF THE
CONSTITUTION OF INDIA AND DIRECT THE RESPONDENTS
TO CONSIDER THE CASE OF THE PETITIONER FOR
REGULARIZATION ON COMPLETION OF 10 YEARS OF
SERVICE ON PAR WITH THAT OF THE KARNATAKA CIVIL
SERVICES (ABSORPTION OF PERSONS WORKING ON PART-
TIME LECTURERS IN THE KARNATAKA GENERAL SERVICES)
(DEPARTMENT OF PRE-UNIVERSITY EDUCATION) (SPECIAL)
RULES, 2011 (ANNEX-Q) SINCE THE TERMS AND
CONDITIONS OF THE LECTURERS BOTH AIDED AND
GOVERNMENT REMAINS THE SAME AND ETC.
                           3

W.P.NO.11074/2019

BETWEEN:

1.     RAMANANDA BHAT D
       AGED ABOUT 51 YEARS,
       S/O D GOPALAKRISHNA BHAT,
       WORKING AS LECTURER IN SANSKRIT,
       AT SRI VENKATARAMANA SWAMY COLLGE,
       BANTWAL-574211
       DAKSHINA KANNADA DISTRICT,
       R/AT NO. 3-96E,
       VALASARI ROAD, MANIHALLA,
       BANTWAL-574211
       DAKSHINA KANNADA DISTRICT.

2.     SUNDARA
       AGED ABOUT 45 YEARS,
       S/O HANIYA,
       WORKING AS PHYSICAL EDUCATION DIRECTOR,
       AT SRI VENKATARAMANA SWAMY COLLEGE,
       BANTWAL-574211
       DAKSHINA KANNADA DISTRICT,
       R/OF KANCHARAMAKKI HOUSE,
       KOWKRADY VILLAGE, NELLYADI POST,
       PUTTURU TALUK-574229
       DAKSHINA KANNADA DISTRICT.
                                    ....PETITIONERS

(BY SRI V LAKSHMI NARAYANA, SR.COUNSEL A/W
 SRI PRATHAM N, ADV. FOR M/S. BALAJI ASSTS., ADVS.)

AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS PRINCIPAL SECRETARY,
       EDUCATION DEPARTMENT,
       (SECONDARY EDUCATION),
       M.S.BUILDING, SACHIVALAYA,
       BENGALURU-560001.
                             4

2.   THE COMMISSIONER OF
     COLLEGIATE EDUCATION
     PALACE ROAD,
     BENGALURU-560001.

3.   SRI VENKATARAMANA SWAMY COLLEGE,
     BANTWAL-574211,
     BANTWAL TALUK,
     DAKSHINA KANNADA DISTRICT,
     REPRESENTED BY ITS PRESIDENT.

4.   THE PRINCIPAL
     SRI VENKATARAMANA SWAMY COLLEGE,
     BANTWAL-574211,
     BANTWAL TALUK,
     DAKSHINA KANNADA DISTRICT.
                                ....RESPONDENTS

(BY SMT. M.C.NAGASHREE, ADV. FOR R1 & R2
 SRI P.S.RAJAGOPAL, SR. COUNSEL A/W
 SRI M SUBRAMANYA BHAT, ADV. FOR R3 & R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE RESPONDENT NOT TO GIVE EFFECT TO THE
NOTIFICATION DATED 23.02.2019 (ANNEXURE-A) ISSUED BY
THE R-3 MANAGEMENT AND ISSUE A WRIT OF CERTIORARI
TO QUASH THE NOTIFICATION INCLUDING THE FURTHER
PROCEEDINGS TAKEN UP AS ON THE DATE OF FILING OF
THE PETITION AND TO DECLARE THAT THE SAME IS
VIOLATIVE   OF   ARTICLES   14,   16   AND   21   OF   THE
CONSTITUTION OF INDIA AND ETC.,

     THESE WRIT PETITIONS COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
                                5


                       ORDER

In W.P.No.45569/2018, the petitioner is before this

Court under Article 226 of the Constitution of India

praying for a writ of certiorari to quash the endorsement

bearing No.PÁ²E/186/j¦/2017-18/£ÉÃ« dated 26.07.2018

(Annexure-G) by which, the petitioner's request for

regularization of his service as Physical Education Teacher

in 4th respondent-College is rejected by the second

respondent and for a further direction to the respondents

to consider the case of the petitioner for regularization on

completion of 10 years of service on par with that of the

Karnataka Civil Services (Absorption of Persons Working

on Part-Time Lecturers in the Karnataka General Services)

(Department of Pre-University Education) (Special), Rules

2011 (for short "2011 Rules") and further to direct the

respondents to consider the case of the petitioner either in

Pre-University College or in Degree College in the same

Institute as Physical Education Teacher; and also for a

direction to extend equal pay for equal work on the basis

of principles of Article 39(D) of the Constitution of India

and as held by the Hon'ble Apex Court in the case of

STATE OF PUNJAB v/s JAGJIT SINGH reported in AIR

2016 SC 5176.

2. In W.P.No.11074/2019, the petitioner is before this

Court praying for a direction to the respondents not to

give effect to the Notification dated 23.02.2019 by which,

the 3rd respondent-Management invited applications from

eligible candidates to fill up various vacant posts including

that of Physical Education Teacher and also for a direction

to the respondents to pay entire salary for 17 years from

the date of initial appointment till date.

3. In both the writ petitions, the petitioner is one and

the same.

4.    Heard       the      learned          Senior     counsel

Sri.V.Lakshminarayana       along    with    learned   counsel

Sri.Pratham N., for Balaji Associates for the petitioner,

learned Additional Government Advocate

Smt.M.C.Nagashree for respondents No.1 and 2 and

learned Senior Counsel Sri.P.S.Rajagopal along with

learned counsel Sri.M.Subramanya Bhat for respondent

No.3 and Sri.Cyril Prasad Pais, learned counsel for

respondent No.4. Perused the writ petition papers and the

citations placed on record by both the parties.

5. The petitioner who possesses qualification of Master

of Physical Education and Sports (MPES) with First Class

and M.Phil, applied for the post of Physical Education

Teacher in pursuance of the paper publication dated

20.07.2021 issued by the 3rd respondent-College inviting

applications from the eligible candidates to fill up the post

of Physical Director temporarily. The Notification

indicates the qualification of M.P.Ed or Equivalent Degree

to the post of Physical Director which was reserved for

Scheduled Caste candidate. The petitioner claims that he

belongs to Scheduled Caste category. In pursuance of the

application of the petitioner, the petitioner was selected

and appointed as Physical Education Teacher by

proceedings of the 3rd respondent-College dated

30.07.2001 (Annexure-B). The order of appointment

makes it clear that the appointment is on temporary basis

and that the petitioner would be governed by all the Rules

and Regulations framed by the College/ Management from

time to time. The second respondent under letter dated

31.07.2008 sought information from the 4th respondent-

Principal with regard to vacancy of the Physical Education

Teacher and as to whether the said post is an approved

post. The 4th respondent replied as per Annexure-D dated

06.03.2009 intimating the Department that prior to

bifurcation of Degree and Pre-University College, there

was one approved post of Physical Education Teacher

which is vacant in the Degree College. The statement

appended to the said letter indicates that one post of

Physical Education Teacher at Degree College is vacant

and there is no approved post of Physical Education

Teacher in the Pre-University college. The petitioner was

before this Court in W.P.No.21314/2014 praying for a

direction to consider his case for regularization as the

petitioner had completed more than 10 years of service

against the sanctioned post. This Court, by order dated

11.04.2017 directed the respondent-Authorities to

consider his representation within a time frame and to

pass orders. Pursuant to the orders of this Court,

respondent No.2 issued impugned endorsement dated

26.07.2018 (Annexure-G) stating that the petitioner would

not be entitled for regularization since his appointment is

not by following the procedure as contemplated under the

Karnataka Education Institutions Collegiate Education)

Rules 2003 (for short "2003 Rules") and also that the

petitioner has not completed 10 years as on the date of

UMADEVI case.

6. In W.P.No.11704/2019, the respondent-College on

getting permission from the Department for recruitment of

teachers issued paper publication for filling up vacant

posts including that of Physical Education Teacher. At

that point of time, the petitioner filed the writ petition with

a prayer to quash the Notification inviting applications

insofar as Physical Education Teacher is concerned. This

Court, by order dated 19.03.2019 stayed the Notification

inviting applications and subsequently this Court by order

dated 17.07.2019 modified the interim order to the extent

of permitting the College to proceed with the

Advertisement and not to issue appointment order insofar

as Physical Education Teacher/Director is concerned.

7. Learned Senior Counsel for the petitioner submits

that as on this date, the petitioner is working as Physical

Education Teacher/Director in the 4th respondent/College

for more than 20 years and the petitioner would be

entitled for regularization since he possesses the requisite

qualification and working against sanctioned and

approved post. It is submitted that the petitioner is

working on full-time basis and he is discharging duties as

full-time Physical Education Teacher/Director.

Respondent No.3/College is an aided Institution and there

is no justification for respondents No.3 and 4 to deny

regularization to the petitioner since the petitioner is

appointed in pursuance of the Notification inviting

applications dated 20.07.2001 (Annexure-A). Learned

Senior Counsel submits that since the petitioner is

working for the last 17 years, it indicates the need and

requirement of services of the petitioner and hence he is

continued so long. It is his submission that the person

who was working as Physical Education Teacher retired

from service in the year 2001 and on the vacancy created

by virtue of retirement, the petitioner was appointed as

Physical Education Teacher. The post in which the

petitioner is working is a permanent and approved post.

Since the petitioner is working in the permanent and

approved post and since the petitioner is not continued in

pursuance of any interim order by the Court or Tribunal,

the petitioner would fulfill the conditions enumerated in

the case of SECRETARY, STATE OF KARNATAKA AND

OTHERS vs UMADEVI (3) AND OTHERS reported in (2006) 4

SCC 1 and he would be entitled for regularization.

8. Learned Senior Counsel taking through the 2011

Rules submits that there cannot be any discrimination

between the Government teachers and teachers working in

the aided institutions. In accordance with the provisions

of 2011 Rules, the petitioner even though working as

Lecturer in the aided institution, would be entitled for

regularization in accordance with 2011 Rules. Further,

learned Senior counsel also invites attention of this Court

to Karnataka Educational Institutions (Absorption of

Persons Working as Part-Time Lecturers in the Aided

Private Educational Institutions) (Special) Rules, 2010 (for

short "2010 Rules") and also Annexure-R and submits

that the petitioner fulfills the conditions stated therein

and would be entitled for regularization in accordance

with the said Rules.

9. Learned Senior Counsel strenuously contended that

if a person continues to work in an approved and

sanctioned post for more than 10 years, services of such

person or employee could be regularized in view of

decision of the Hon'ble Supreme Court in UMADEVI case.

He submits that an employee or person who has

completed 10 years of service as on the date of UMADEVI

case only could be regularized is not correct and in that

regard, he relies upon a decision of the has in MALATHI

DAS (RETIRED) NOW P.B.MAHISHY AND OTHERS v/s

SURESH AND OTHERS reported in (2014)13 SCC 249;

(2018) 8 SCC 238 in the case of NARENDRA KUMAR

TIWARI AND OTHERS v/s STATE OF JHARKHAND AND

OTHERS; RAJNISH KUMAR MISHRA AND OTHERS v/s

STATE OF UTTAR PRADESH AND OTHERS reported in

(2019)17 SCC 648. Thus, the learned Senior Counsel

would submit that as the petitioner has completed more

than 20 years of service as on this date, the petitioner

would be entitled for regularization. The endorsement

issued by the respondents on the ground that the

petitioner has not completed 10 years of service as on the

date of UMADEVI case is opposed to the decisions referred

to above and further submits that the petitioner was

appointed by following procedure by inviting applications

through paper publication. Learned Senior counsel also

submits that since the petitioner is performing and

discharging duties against a permanent and approved

post, he would be entitled for equal salary as that of a

permanent teacher. Thus, he prays for allowing the writ

petitions.

10. Per contra, learned Additional Government Advocate

would submit that the post of Physical Education Teacher

in Pre-University College of 3rd respondent is not an

approved post and the petitioner has also not placed on

record any document to establish that the post of Physical

Education Teacher at Pre-University College of 3rd

respondent is an approved or sanctioned post. It is

submitted that prior to 2001, there was composite college

of Degree and Pre-University. At the request of 3rd

respondent-Management, the college was bifurcated into

Degree and Pre-University College. The approved post of

Physical Education Teacher subsequently was with the

Degree college and the post of Physical Education Teacher

at Pre-University college was not approved nor sanctioned

post. Learned AGA invites attention of this Court to

Annexure-A/Advertisement dated 20.07.2001 wherein the

applications were invited to fill up temporary posts of

Lecturers including that of Physical Education

Teacher/Director, which explicitly makes it clear that it is

to fill up temporary posts of Lecturers. Moreover, she

submits that while the petitioner was appointed on

temporary basis in pursuance of Annexure-A/Notification,

the 3rd respondent-College has not followed the procedure

prescribed under the Rules. Thus, she prays for dismissal

of the writ petitions.

11. Learned Senior Counsel Sri.P.S.Rajagopal appearing

for respondents No.3 and 4 submits that the petitioner is

not appointed or working as against the sanctioned or

approved post of Physical Education Teacher/Director. It

is his submission that Annexure-A/Notification inviting

applications whereunder the petitioner was appointed

temporarily, makes it clear that the applications are

invited to fill up temporary Lecturer posts including that

of Physical Education Teacher/Director and also invites

attention of this Court to the proceedings of appointment

at Annexure-B dated 30.07.2001 to show that the

appointment is on temporary basis. Learned Senior

counsel submits that at the request of 3rd respondent-

Management, the second respondent passed an order

dated 02.08.2001 bifurcating Degree and Pre-University

Colleges which is placed on record along with the memo

dated 07.12.2021. Annexure-1 appended to the said

order indicates allotment of post of Physical Education

Teacher/Director to the Degree College. Thus, he submits

that only one approved sanctioned post of Physical

Education Teacher was available and the same was

allotted to the Degree college. The petitioner was

appointed in the year 2001 temporarily as Physical

Education Director. Learned Senior counsel would submit

that since the appointment of the petitioner is not against

a sanctioned post and since the appointment of the

petitioner is not approved by the Department, the

petitioner would not be entitled for regularization.

Further, he also submits that the petitioner would not

possess requisite qualification of passing National

Eligibility Test (NET). Learned Senior Counsel inviting

attention to 2011 Rules, submits that it would have no

application to the petitioner's case since the said Rules

was specifically applicable to the posts in Government Pre-

University Colleges. Since the petitioner is working in a

private aided college, the said 2011 Rules would not be

applicable to the case of the petitioner. Further, learned

Senior Counsel referring to 2010 Rules submits that even

though the said Rules is applicable to Aided Private

Educational Institutions, the petitioner would not fulfill

the conditions laid down therein. He invites attention to

Rule 2(c)(i) and (iii) to contend that to get the benefit of

2010 Rules, the petitioner who claims that he is a

Scheduled Caste category person ought to have worked in

any one of the academic year of 1993-94 or 1994-95.

Since the petitioner is appointed in the year 2001, he

would not fulfill the conditions laid down therein. Thus,

he submits that the petitioner would not be entitled for

the benefit of 2010 Rules.

12. Learned Senior Counsel submits that regularization

could be made only as per the Regularization Policy

declared by the State Government. Nobody can claim

regularization as a matter of right. Further, he submits

that mere continuance for long period in a post would not

entitle a person for regularization. He submits that the

petitioner had not completed 10 years of service as on the

date of UMADEVI case which was rendered in the year

2006. It is his submission that paragraph 53 of the

UMADEVI case makes it clear that as a one time measure,

the State Government could regularize daily wagers who

have completed 10 years as on that date and who was

working as against sanctioned post without the aid of any

interim order from the Courts or Tribunals.

13. On hearing the learned counsel for the parties and

on perusal of the writ petition papers, the only point

which falls for consideration is as to whether the

petitioner is entitled for regularization as Physical

Education Teacher/Director in the 4th respondent college?

14. Answer to the above point would be in the negative

and the petitioner would not be entitled for regularization

for the following reasons:

The petitioner applied for the post of Physical

Education Teacher/Director in pursuance of the paper

advertisement issued by the 4th respondent-College as per

Annexure-A dated 20.07.2001. The advertisement itself

makes it clear that it is to fill up temporary posts of

Lecturers in the college including that of Physical

Education Director. The appointment letter at

Annexure-B dated 30.07.2001 also makes it clear that the

appointment of the petitioner is on temporary basis. Till

2001, the Degree and Pre-University college was composite

college and one approved and sanctioned post of Physical

Education Teacher was existing. One Mr.Sequera was

working in the said post. Subsequent to his retirement,

the petitioner was appointed as Physical Education

Teacher on temporary basis. The order dated 02.08.2001

subsequent to the appointment of the petitioner bifurcates

the Degree as well as Pre-University College. Annexure-1

appended to the said order indicates allotment of

sanctioned post of Physical Education Teacher to Degree

college whereas the petitioner is continued as Physical

Education Teacher in Pre-University College where there

was no sanctioned or approved post of Physical Education

Director. The statement forwarded by 3rd respondent/

Management to the joint Director of Pre-University College

at Annexure-D indicates that there was no approved or

sanctioned post of Physical Education Teacher in Pre-

University College. The petitioner's appointment as

Physical Education Teacher on temporary basis is not

approved by the Department and the petitioner continued

to work temporarily without the approval of the

Department. The petitioner has not placed on record any

material or document to establish that his temporary

appointment was approved by the competent authority

and he has failed to establish that the temporary

appointment of the petitioner is against a sanctioned and

approved post. It is not in dispute that the petitioner is

working in Pre-University college as Physical Education

teacher whereas on bifurcation of Degree and Pre-

University college in the year 2001, the sanction post of

Physical Education teacher is allotted to Degree college.

Unless one works or discharges duty in a sanctioned

vacancy and appointed by following the statutory

provisions relating to recruitment and appointment, he

would not be entitled for regularization.

15. Regularization cannot be claimed as a matter of

right. Regularization of appointment means making an

irregular appointment regular. Regularization could be

only in accordance with the policy of the State

Government or the authority which is empowered to

appoint a person to a post. The Constitutional Bench of

the Hon'ble Apex Court in the case of STATE OF

KARNATAKA v/s UMADEVI reported in (2006) 4 SCC 1,

on survey of all earlier decisions relating to regularization

held that "the wide powers under Article 226 are not

intended to be used for a purpose certain to defeat the

concept of social justice and equal opportunity for all,

subject to affirmative action in the matter of public

employment as recognized by our Constitution". Further

it is held that the High Courts acting under Article 226

should not, therefore, ordinarily issue directions for

absorption, regularization, or permanent continuance

unless the recruitment itself was made regularly and in

terms of the constitutional scheme. Further the Hon'ble

Apex Court at paragraph 53 of the UMADEVI (supra)

permitted as a one time measure regularization of

irregularly appointed persons. Paragraph 53 reads as

follows:

" 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.

Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 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."

A reading of the above paragraph of UMADEVI (Supra)

judgment, it makes it clear that regularization of

irregularly appointed persons could be taken up as a one

time measure only if an employee fulfill certain conditions

such as (a) the employee concerned should have worked

for ten years or more in a duly sanctioned post without

the benefit or protection of the interim order of any Court

or Tribunal, which means the employee appointed

temporarily should have continued in service voluntarily

and continuously for more than ten years; (b) the

appointment of such employee should not be illegal even if

irregular. The appointment of such employee if it is not

against sanctioned post or where such person do not

possess prescribed minimum qualification, such

appointment would be illegal and he would not be entitled

for regularization.

16. In the case on hand, the petitioner is not working

against sanctioned post in the Pre-University college and

the appointment of petitioner is not approved by the

competent authority. Moreover, the petitioner had not

completed ten years of service as on the date of UMADEVI

(supra) case. Therefore, the petitioner would not be

entitled for regularization in terms of UMADEVI (supra).

17. The learned Senior counsel Sri.V.Laxminarayan for

petitioner vehemently contended that the completion of

ten years service need not be as on the date of the

decision in UMADEVI case, but even if a person completes

ten years service subsequently also would be entitled for

regularization. But the said contention cannot be accepted

as no decision subsequent to UMADEVI has held that a

person who completes ten years of service subsequently

also would be entitled for regularization. Learned Senior

Counsel relying upon decisions stated supra tried to

impress upon the Court that a person who completes ten

years of service even after UMADEVI would be entitled for

regularization. But in none of the decisions relied upon by

the learned Senior Counsel it is held that a person who

completes ten years of service even after UMADEVI would

be entitled to regularization. Subsequent decision in

STATE OF KARANTAK AND OTHERS v/s M.L.KESARI

AND OTHERS reported in (2010) 9 SCC 247 explained

the decision in UMADEVI. Paragraph 11 explains

paragraph 53 of UMADEVI which reads as follows:

"11. The object behind the said direction in para 53 of Umadevi(3) 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(3) was rendered, are considered for regularization 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 regularize 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 (3)) 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 regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi (3) or that such

exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi (3) as a one-time measure.

The above paragraph makes it clear that as per UMADEVI

a person who puts in more than ten years of continuous

service without the protection of any interim order of

Courts or Tribunals, before the date of decision in

UMADEVI (3) was rendered, are considered for

regularization in view of their long service.

18. A perusal of 2011 Rules makes it clear that the said

Rules would be applicable to part-time Lecturers working

in Government Pre-University College and it would have

no application to the Lecturers working in private aided

college. The definition of part-time Lecturer under 2011

Rules means, a person who was appointed as part-time

Lecturer against full-time sanctioned post in a

Government Pre-University College. Since the petitioner is

not working against full-time sanctioned post in

Government Pre-University college, 2011 Rules would

have no application to the case of the petitioner.

19. Learned Senior Counsel also submitted that under

2010 Rules: Karnataka Educational Institutions

(Absorption of Persons Working as Part-time Lecturers in

the Aided Private Educational Institutions) (Special) Rules,

2010, the petitioner would be entitled for regularization,

which is placed on record as Annexure-R. 2010 Rules, no

doubt applies to the part-time Lecturers in the Aided

Private Educational Institutions. Part-time Lecturer under

2010 Rules means a person appointed in a Private Aided I

Grade College and working or worked as such, with the

approval or permission of the Director or Commissioner of

Collegiate Education and who has worked as such for not

less than two academic years 1993-94 and 1994-95. In

case of persons belonging to Scheduled Caste and

Scheduled Tribes, must have worked as such for not less

than one academic year either during 1993-94 or

1994-95. The petitioner in the instant case was appointed

temporarily on 30.07.2001. Since the petitioner is

appointed in the year 2001, he would not fulfill the

conditions enumerated in the definition clause of

Part-Time Lecturer under 2010 Rules. The petitioner is

appointed in the year 2001, he would not fulfill the

condition of working not less than two academic years

1993-94 and 1994-95 or one academic year in case of

Scheduled Caste and Scheduled Tribes. Thus, the said

Rule would have no application to the case of the

petitioner. In MALATHI DAS case supra the Apex Court

was examining the appeal filed against an order, finding

prima facie guilty of commission of contempt and in that

circumstances held that the stand taken in refusing

regularization cannot be countenanced, having regularized

similarly placed persons even after UMADEVI's case. The

fact situation in the present case is entirely different and

MALATHI DAS case would not assist the petitioner in the

present case. In NARENDRA KUMAR TIWARI case supra,

the Hon'ble Apex Court was considering as to whether the

State of Jharkhand was right in denying the benefit of

regularization in view of the provisions of the Jharkhand

Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam

Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali,

2015, on the ground the petitioner therein had not

completed ten years as on the date of decision of

UMADEVI. The Hon'ble Apex Court in the context of

regularization Rules at paragraph 10 has held as follows :-

"10. Under the circumstances, we are of the view that the regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularized unless there is some valid objection to their regularisation like misconduct, etc."

In the State of Karnataka, there is no such Rule and

petitioner's prayer is not based on any Rules which

permits regularization. The decision in RAJNISH KUMAR

MISHRA case supra was considering as a case of

regularization under Uttar Pradesh Regularization of

Adhoc Appointment of post within the purview of Public

Service Commission Rules, 1979, as amended in the year

2001. The Hon'ble Apex Court has come to the conclusion

that the appellant's case therein was required to be taken

into consideration in view of the exception carved out in

UMADEVI's case cited supra. Therefore, the decision in

RAJNISH KUMAR case cited supra would also not assist

the case of the petitioner.

20. To consider the prayer of the petitioner to extend

equal pay for equal work, the petitioner has not made

available any details. The petitioner has not stated as to

what is the pay that the petitioner is receiving as on the

date of filing the petition and the pay which the

respondent-Management has denied. At paragraph 15 of

the petition, the petitioner has stated that the petitioner

has the qualification attached to the post and there is no

justification to deny the relief of not only the full salary to

the petitioner but also equal pay for equal work. It is well

settled law that only because the nature of work is the

same the petitioner cannot seek equal pay for equal work,

but it would depend upon the educational qualification,

mode of appointment, experience and other relevant

factors. Financial capacity of the Management is also a

factor, which is to be considered and it is to be noted that

equal pay for equal work is not a fundamental right.

Equal pay for equal work could be claimed only against

the State and not against an unaided private school or

unaided post. In the instant case, the petitioner is

working temporarily without approval of the competent

authority against non-approved post.

21. The petitioner has specifically prayed for equal pay

for equal work relying upon the decision in JAGJIT SINGH

case supra. The issue for consideration in JAGJIT SINGH

case was whether temporarily engaged Employees (Daily

Wage employees, Adhoc Appointees, Employees Appointed

on Casual Basis, Contractual Employees and the like), are

entitled to minimum of regular pay scale along with D.A.

(as revised from time to time), on account of their

performing the same duties, which are discharged by

those engaged on regular basis against sanctioned posts?

The Hon'ble Apex Court at paragraph 42 of the JAGJIT

SINGH case laid down principles for grant of equal pay for

equal work. Relevant paragraphs 42.1 and 42.6 reads as

follows :-

"42(i). The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see-the Orissa University of Agriculture & Technology case, (2003 AIR SCW 2513), Union Territory Administration, Chandigarh v. Manju Mathur, (2011 AIR SCW 940) the Steel Authority of India Limited case, (AIR 2011 SC 897) and the National Aluminum Company Limited case):(AIR 2014 SC (Supp) 1469).

42(vi). For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see-the Orissa University of Agriculture & Technology case) (2003 AIR SCW 2513)."

22. In the case on hand, the petitioner has not

established with particulars that the post held by him,

required to discharge equal work or same work discharged

by regular employee. Moreover, this Court has come to

the conclusion that the petitioner is appointed on

temporary, non-approved post. Therefore, it is open for

the petitioner to make appropriate representation to the

Management establishing his right for equal pay for equal

work.

23. Insofar as prayer of the petitioner in

W.P.No.11075/2019 not to give effect to the notification

dated 22.03.2019 issued by the respondent No.3/