Anup Kumar vs The State Of Karnataka And Ors
2022 Latest Caselaw 12491 Kant

                          1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF OCTOBER, 2022

                       BEFORE

         THE HON'BLE MR.JUSTICE R. DEVDAS


        WRIT PETITION No.201010/2022 (S-RES)
BETWEEN:

ANUP KUMAR S/O VASANTRAO,
AGED ABOUT 44 YEARS,
OCC: STAFF NURSE, MORARJI
DESAI RESIDENTIAL SCHOOL
BETBALKUNDA
VILLAGE, TQ. BASVAKALYAN
R/O H.NO.33-81, BHEEM NAGAR,
TQ. BASAVAKALYAN AND
DIST. BIDAR-585327.
                                       ... PETITIONER

(BY SRI JAIRAJ K. BUKKA, ADVOCATE)


AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS
       PRINCIPAL SECRETARY
       SOCIAL WELFARE DEPARTMENT,
       VIKASA SOUDHA
       BANGALORE-560001.

2.     THE KARNATAKA RESIDENTIAL
       EDUCATIONAL INSTITUTION
       SOCIETY, REPRESENTED BY
                              2



     ITS SECRETARY
     KARNATAKA STATE CO-OPERATIVE
     BOARD BUILDING,
     6 AND 7 FLOOR,
     NEAR CHANDRIKA HOTEL
     CUNNINGHAM ROAD,
     BANGALORE-560052.

3.   THE DEPUTY DIRECTOR
     SOCIAL WELFARE DEPT.
     NAUBAD, BIDAR-585401.

4.   THE PRINCIPAL
     MORARJI DESAI RESIDENTIAL
     SCHOOL, MANNAHALLI,
     TQ. AND DIST. BIDAR-585401.
                                            ... RESPONDENTS

(BY SRI SHIVAKUMAR R. TENGLI, AGA FOR R1 & R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE SECOND RESPONDENT ENDORSEMENT
LETTER       NO.PÀª²
                   À ¸À¸/À PÁ±Á«/«ªÀ-64/2021-22     DATED

17.02.2022 AT ANNEXURE-Q2 AND DIRECT THE THIRD
RESPONDENT      TO     CONSIDER       THE     PETITIONER'S
REPRESENTATION       MADE        ON    01.12.2020    VIDE
ANNEXURES-L AND L1 AND ANOTHER REPRESENTATION
DATED 25.01.2021 VIDE ANNEURE-Q1 AND ETC.


     THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
                                 3




                             ORDER

R. DEVDAS J., (ORAL):

Learned Additional Government Advocate takes

notice for respondent Nos.1 and 3. Notice to other

respondents is not necessary for the following

reasons:

2. It is the contention of the petitioner that he

has been working as Staff Nurse at Morarji Desai

Residential School, Mannahalli, Bidar Taluk and

District, on contract basis from 21.08.2010 through

M/s. Manpower Agency. The petitioner is seeking

regularisation of service on the ground that he has put

in more than ten years of uninterrupted service and

therefore, having regard to the claim of the petitioner

that the provisions of Article 371-J of the Constitution

of India which grants such status to the people hailing

from Hyderabad-Karnataka Region should also be

borne in mind while considering the grievance of the

petitioner.

3. Learned counsel submits that earlier the

petitioner was before this Court in

W.P.No.200110/2021 with the same prayer. This

Court by order dated 07.10.2021, directed the

concerned authority to consider the representation

given by the petitioner and pass necessary orders

within a period of two months from the date of receipt

of a certified copy of the said order. However, it was

made clear that no opinion on the merits of the claim

of the petitioner was expressed by the Court.

4. Consequent to the direction issued by this

Court, the Executive Director of the second

respondent-Karnataka Residential Educational

Institutions Society, issued the impugned

endorsement dated 17.02.2022 stating that if the

application of the petitioner is considered, it would run

counter to the decision of the Hon'ble Supreme Court

rendered in the case of Secretary, State of

Karnataka and others vs. Umadevi (3) and

others reported in (2006) 4 SCC 1. On that ground,

request made by the petitioner has been rejected.

5. Learned counsel for the petitioner submits

that the petitioner has put in more than twelve years

of uninterrupted service therefore grievance of the

petitioner has to be considered.

6. Per contra, learned Additional Government

Advocate submits that the impugned order is in

consonance with the directions issued by the Hon'ble

Supreme Court in Umadevi's case (supra).

Therefore, no infirmity can be found in the impugned

endorsement.

7. Having considered the submissions of the

learned counsel for the petitioner, learned Additional

Government Advocate and on perusing the petition

papers, this Court finds that the claim made by the

petitioner, if considered, would run contrary to the

decision of the Hon'ble Supreme Court, more so, as

contained in paragraph-53 of the judgment in the case

of Umadevi (supra). Paragraph-53 of the judgment

is extracted herein below for easy reference.

"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 sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

8. Having regard to the directions issued by

the Hon'ble Supreme Court, it is clear that only those

cases of employees who had already put in more than

ten years of service prior to the decision of the

Hon'ble Supreme Court in the case of Umadevi was

required to be considered and that too within a period

of six months from the date of the judgment.

Needless to say that condition precedent for

consideration of such cases was that such employees

should have continued to work for ten years or more

in duly sanctioned posts, but not under cover of

orders of the Courts or of the Tribunals.

9. In the present case, although no Court

orders are found in favour of the petitioner,

nevertheless, the moot question is whether such cases

where the claim is made that the petitioner has put in

more than ten years of service and therefore, a right

is vested in the petitioner, could be considered and

whether it would run counter to the judgment of the

Hon'ble Supreme Court. In the considered opinion of

this Court, the decision of the Hon'ble Supreme Court

is that the concerned Governments i.e., Government

of India, State Governments and their

instrumentalities were required to take steps to

regularise, as one time measure, services of such

irregularly appointed persons, who have worked for

ten years or more in duly sanctioned posts. Such

direction was with reference to persons who had

already put in ten years of service or more prior to the

judgment of the Hon'ble Supreme Court. This is

further established by the fact that a clear direction

was issued in Umadevi's case (supra) that concerned

Governments and State instrumentalities were

required to take steps as one time measure and pass

necessary orders within a period of six months from

the date of the judgment. On the contrary, here is a

case where it is clear even from the memorandum of

writ petition that the petitioner claims to have been

appointed as Staff Nurse on 21.08.2010, through an

agency. Therefore, it is clear that the petitioner does

not fulfill the requirements as stipulated in paragraph-

53 of Umadevi's case (supra).

10. Consequently, this Court having found no

infirmity in the impugned endorsement, would

proceed to dismiss the petition.

Ordered accordingly.

Learned Additional Government Advocate is

permitted to file memo of appearance within a period

of four weeks from today.

Sd/-

JUDGE

NB*