Karnataka High Court
State Of Karnataka vs Sri Mayanna Gowda M on 24 August, 2023
Bench: G.Narendar, C.M. Poonacha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.8700 OF 2021 (S-KSAT)
BETWEEN:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY TO GOVT
FINANCE DEPARTMENT
(COMMERCIAL TAXES),
VIDHANA SOUDHA
BENGALURU-560001
2. THE COMMISSIONER OF
COMMERICIAL TAXES
GANDHINAGAR
BENGALURU-560009
3. THE ADDITIONAL COMMISSIONER
OF COMMERCIAL TAXES (ENF)
KORAMANGALA
BENGALURU-560047
4. THE JOINT COMMISSIONER OF
COMMERCIAL TAXES (VIG)
KORAMANGALA
BENGALURU-560047
...PETITIONERS
(BY SMT SHILPA S GOGI, AGA)
2
AND
1. SRI MAYANNA GOWDA M
S/O LATE MARIMAYANNA GOWDA
AGED ABOUT 51 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
2. RAMACHANDRAIAH
S/O LATE LINGAIAH
AGED ABOUT 53 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
3. THE KRISHNA
S/O LATE BORAIAH
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
4. S.N NARASE GOWDA
S/O LATE NARASEGOWDA
AGED ABOUT 53 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
3
5. B MANJUNATH
S/O LATE A BORAIAH
AGED ABOUT 50 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL
COMMISSIONER OF COMMERCIAL TAXES
(ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
6. BASAVARAJ R
S/O LATE RAMEGOWDA
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
7. ESHWARAPPA
S/O LATE NARAYANAPPA
AGED ABOUT 56 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
8. ANKAIAH
S/O LATE LINGAIAH
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
4
9. N SHANKAR
S/O LA NARASIMHAIAH
AGED ABOUT 52 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
10 . JAYALAKSHMI BAI
W/O LATE GANGOJI RAO
AGED ABOUT 57 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
11 . B SHIVAKUMAR
S/O LATE BORAIAH
AGED ABOUT 49 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
12 . M RAMESH
S/O LATE MARIYAPPA
AGED ABOUT 50 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
5
13 . SHIVA SWAMY
S/O LATE GAVIYAPPA
AGED ABOUT 53 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
14 . T.B. NAGARAJ
S/O LATE BETTAIAH
AGED ABOUT 54 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
15 . G. PRAKASH
S/O LATE GANGIAH
AGED ABOUT 54 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
16 . B.T MARANNA
S/O LATE THIMMARAYAPPA
AGED ABOUT 51 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
17 . S. RAMANAIAH
6
S/O S.JANAIAH
AGED ABOUT 48 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
18 . KAMBAIAH
S/O LATE PUTTASWAMY
AGED ABOUT 52 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
19 . RANGARAJU T
S/O EARANNA
AGED ABOUT 56 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
20 . ZAHEER AHMED
S/O MOHD, JABBAR
AGED ABOUT 55 YEARS
WORKING AS DAILY WAGES HAMALI
OFFICE OF THE ADDITIONAL COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
VTK-2, B-BLOCK, RAJENDRA NAGAR
KORAMANGALA
BENGALURU-560047
...RESPONDENTS
(BY SRI LAKSHMINARAYANA V, SENIOR COUNSEL FOR
SMT L ANUSHA, ADVOCATE FOR R1 TO R12, R14 TO R18)
7
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 29.06.2020 IN A.NOS.205-224 AND 324-343/2017
ANNEXURE-C PASSED BY THE HON'BLE KARNATAKA STATE
ADMINISTRATIVE TRIBUNAL, BENGALURU AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, POONACHA J., MADE
THE FOLLOWING:
ORDER
The present writ petition is filed by the State
challenging the order dated 29.06.2020 passed in
Application Nos.205-224 and 324-343/2017 passed by
the Karnataka State Administrative Tribunal (for short
referred to as 'the Tribunal'), whereunder, the
Tribunal allowed the applications filed by the
respondents.
2. The relevant facts necessary for
consideration of present petition are that, the
respondents who are the applicants before the
Tribunal are working as Hamalies in the Department
of Commercial Tax, Government of Karnataka, since
1984-1987 for more than three decades without any
interruption. On a threat of the termination, they
approached the Tribunal in Application Nos.911-
928/2003 and by order dated 26.07.2005, the
Tribunal directed the State authorities to await the
decision of the Hon'ble Supreme Court regarding
regularization and to maintain the status-quo till then.
Though, even after the decision of the Hon'ble
Supreme Court in the case of Secretary, State of
Karnataka and others, Vs. Umadevi (3) and
others,1 they have been continued in service. It is the
case of the respondents before the Tribunal that, since
minimum wage was not granted to the respondents
despite submitting various representations, they filed
Application No.4462/2007 and Application Nos.7500-
7536/2011 before the Tribunal seeking minimum pay
of the pay scales attached to the Group-D post and
(2006) 4 SCC
regularize their service. The said applications came to
be dismissed by the Tribunal vide order dated
24.02.2012. Being aggrieved by the same,
W.P.No.7222-7241/2002 was filed and this Court by
order dated 25.09.2003, dismissed the writ petition
observing that it is open for the applicants to
approach the authorities under the Minimum Wages
Act.
3. It is the case of the respondents before the
Tribunal that the State Government addressed a
communication dated 02.07.2014, to the
Commissioner of Commercial Taxes that Hamalies
have been appointed as temporary employees, it is
not possible to regularize their services and hence
fixed their pay at the rate prescribed under the
Minimum Wages Act. Vide communication dated
15.11.2014, the Commissioner for Commercial Tax
directed the Additional Joint Commissioners not to
engage the services of Applicants/Hamalies for more
than four hours in a day and that despite issuance of
the said circular, the respondents were made to work
for more than 8 hours a day and sometimes, 10 to 12
hours and in addition they were required to travel to
far away check posts. In reply to the communication,
the Additional Commissioner for Commercial Taxes
(Enforcement) South Zone, Bengaluru and the Joint
Commissioner of Commercial Taxes (Vigilance)
Bengaluru, sent replies dated 12.12.2014 and
30.12.2014, stating that, the nature of work that has
been carried out by the Hamalies takes 8 hours or
more per day and the restriction of the work for 4
hours may be relaxed.
4. The respondents having put in 30 years of
service and their services has not been regularized
despite various similarly placed persons having been
regularized on their completion of 10 years of service,
they have approached the Tribunal seeking inter-alia
payment of minimum wages and regularization in
accordance with the Judgment of the Hon'ble Supreme
Court.
5. The petitioner-State entered appearance
before the Tribunal and contested the claim of the
respondents contending, inter-alia that, the
respondents were not working under any sanctioned
posts and that the respondents were appointed on
'task specific basis' whereunder, they were being
utilized for unloading and loading the goods in transit.
Though their services were utilized in the check posts
of the commercial taxes department to verify the
suspected goods under transit and since it was difficult
to unload and load the goods and physically verify
each and every consignment in the goods vehicle by
the officials on duty, the services of the respondent
No.3 was utilized and consequent to the introduction
of the Goods and Services Tax Act, (GST), the check
posts which were functioning earlier have been
abolished from that date and currently no check posts
were functioning in the State and hence, services of
Hamalies utilized in these check posts earlier are not
required in the changed circumstances. The State
authorities referred to various litigations and orders
passed by this Court and the Tribunal, contending that
the relief sought for in the petition are not liable to be
granted.
6. The Tribunal has, in detail considered the
factual matrix and noticed that, the respondents were
admittedly working as Hamalies from 1984-1987 and
they have rendered services for more than three
decades without any interruption. With regard to the
issue of sanctioned posts, as per the Karnataka
Commercial Taxes Manual at Clause 17, which deals
with staff pattern and duties, the functions of check
posts, the officers and staff in each shift, it was
noticed that there were required to be one or two
Hamalies in each shift. Further it is noticed that, the
check posts were required to function in three shifts
i.e., from 8.00 a.m. to 2.00 p.m., from 2.00 p.m. to
9.00 p.m. and from 9.00 p.m. to 9.00 a.m. and the
duties of the Hamalies among others, including
stopping of vehicles at the check posts, assisting in
conducting physical verifications and carefully
unloading of goods during such verification, and any
other work assigned by the Commercial Tax Officer on
duty. It is further noticed that, in the mobile check
posts also, the said pattern is followed.
7. Having noticed the factual matrix, the
Tribunal has recorded a categorical finding that "it is
beyond doubt that Hamalies work at least 8 hours a
day and discharge duties like other regular employees
like Commercial Tax Officer, Commercial Tax
Inspector, etc.,". The Tribunal recorded a categorical
finding that the respondents fulfilled the condition
precedent for regularization and were entitle for
regularization in Group-D posts.
8. Apart from appreciating the factual matrix
of the matter, the Tribunal at paragraph Nos.51 to 63
noticed the legal position including the Judgments of
this Court with regard to regularization of employees,
as also the Judgments of the Hon'ble Supreme Court
in the case of State of Karnataka and others Vs.
M.L.Kesari and others2, Malathi Das (Retired)
Now P.B.Mahishy and others Vs. Suresh and
others3, State of Uttar Pradesh and others Vs.
Arvind Kumar Srivastava and others4, Sheo
narain Nagar and others Vs. State of Uttar
(2010) 9 SCC 247,
(2014) 13 SCC 249
(2015) 1 SCC 347
Pradesh and another5, Prem Singh Vs. State of
Uttar Pradesh and others6, Union of India and
others Vs. Central Administrative Tribunal and
others7, Jivanlal Vs. Pravin Krishna, Principal
Secretary and others8, State of Punjab and
others Vs. Jagjit Singh and others9, Sabha
Shanker Dube Vs. Divisional Forest Officer and
others10.
9. The Tribunal at paragraph No.64 has
considered the aspect of parity. Further at paragraph
No.21, the Tribunal has considered various
government orders (17 in number), wherein the State
Government has issued orders of regularization of
employees. The Tribunal has also at paragraph No.12
considered the cases of about ten instances of
(2018) 13 SCC 432
AIR 2019 SC 4390
(2019) 4 SCC 290
(2016) 15 SCC 747
(2017) 1 SCC 148
similarly placed persons whose services have been
regularized.
10. After having noticed the aforementioned,
the Tribunal by its order dated 29.06.2020 allowed the
application filed by the respondent and passed the
following order :
"Applications are allowed and Respondents are directed to
regularize services of Applicants as Hamalies in Group-D
posts from the date on which they completed ten years of
service in terms of decisions of Hon'ble Supreme Court
referred to in paragraph under Legal Position referred above
and grant them all consequential benefits including pay scale
attached to Group-D post, after adjusting payment, if any,
made under Minimum Wages Act within Five months from
the date of receipt of certified copy of this order, failing
which the Applicants would be entitled to interest at the rate
of 8% on delayed extension of relief."
11. Being aggrieved, the present writ petitions
are filed.
12. We have heard learned AGA for the
Petitioner-State and learned Senior Counsel Sri.
V.Lakshminarayana for the respondents, who are the
(2019) 12 SCC 297
applicants before the Tribunal. Elaborate submissions
were made by both the learned counsels. Written
submissions and various Judgments have been relied
upon. Since an elaborate reference of the case laws
have already been made by the Tribunal, we shall
refer to those Judgments as may be necessary for the
adjudication of the present petitions. The question
that arises for consideration is,
"Whether, the order of the Tribunal is
liable to be interfered with?"
13. There is not much dispute on the factual
aspects of the matter, the same having been
elaborately being considered by the Tribunal. The
primary contention of the State is that, the
respondents who are appointed on different dates as
Hamalies (coolie workers) in the Mobile and Static
Check Posts in the Department of Commercial Taxes
on the condition that their appointments were purely
on temporary basis at the fixed rate of wages as fixed
by the Government per day and their services can be
terminated without any notice. That the respondents
have accepted the conditions imposed in the
appointment order and have reported for duties as
Hamalies in the check post of the department. That
the appointment of the respondents were neither
covered under the provisions of the Cadre and
Recruitment Rules of the Department, nor against any
sanctioned posts who are paid as per Rule 7 and
55(2)(b) of the Manual of Contingency and
Expenditure, 1958 (MCE). The State relies on the
earlier petition filed by the persons similarly placed as
that of the respondents in Application Nos.4462/2007
and 7500-7536/2011 and the said petitions have been
rejected by the Tribunal as well as by this Court, it is
not open for the present respondents to once again
approach the Tribunal and seek for regularization of
their services.
14. It is relevant to note that, this Court by its
Judgment dated 25.09.2013, while dismissing
W.P.Nos.7222-7241/2012 has observed that, it is
open to the petitioners to approach the authorities
under the Minimum Wages Act for payment of
minimum wages if their pay is less than minimum
wage and it is open for the authorities to consider the
said request and pass appropriate orders. It is
relevant to note that, the said aspect of the matter
has been noticed by the Tribunal at paragraph No.51.
15. The contention of the State that having
regard to the earlier petition filed by similarly placed
persons as that of the respondents which culminated
in the order dated 25.09.2013 passed in
W.P.Nos.7222-7241/2012 wherein the claim of such
similarly placed persons having been rejected, the
claim of the present respondents ought not to be
rejected, has been considered by the Tribunal at para
51 of its order wherein it has noticed that although in
W.P.Nos.7222-7241/2021, this Court dismissed the
writ petitions, the same would not come in the way of
considering the claim of the present respondents as by
virtue of the order dated 03.11.2003 passed in
W.P.Nos.41420-41424/2003 wherein in the said case
in respect of the petitioners who were similarly placed
as that of the respondents in the present case, a
direction was given to the State to consider their case
for regularization and the said order has been
confirmed by the Hon'ble Supreme Court by order
dated 20.11.2006.
16. In any event, the case of the present
respondents is required to be decided having regard
to the settled position of law as held by the Hon'ble
Supreme Court.
17. In the case of Umadevi1, a Constitution
Bench of the Hon'ble Supreme Court after considering
various judgments with regard to regularization has
held as under:
"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."
18. The scope and manner in which the
Constitution Bench Judgment of the Hon'ble Supreme
Court in the case of Umadevi1 was required to be
construed has been the subject matter of various
Judgments of the Hon'ble Supreme Court which is
noticed hereunder:
18.1. In the case of M.L.Kesari2, the
Hon'ble Supreme Court at paragraph Nos.9, 10 and 11
has held as follows:
"9. The term "one-time measure" has to be
understood in its proper perspective. This would
normally mean that after the decision in Umadevi
(3)1, each department or each instrumentality should
undertake a one-time exercise and prepare a list of all
casual, daily-wage or ad hoc employees who have
been working for more than ten years without the
intervention of courts and Tribunals and subject them
to a process verification as to whether they are
working against vacant posts and possess the
requisite qualification for the post and if so, regularise
their services.
10. At the end of six months from the date
of decision in Umadevi (3)1, cases of several daily-
wage/ad hoc/casual employees were still pending
before courts. Consequently, several departments and
instrumentalities did not commence the one-time
regularisation process. On the other hand, some
government departments or instrumentalities
undertook the one-time exercise excluding several
employees from consideration either on the ground
that their cases were pending in courts or due to
sheer oversight. In such circumstances, the
employees who were entitled to be considered in
terms of para 53 of the decision in Umadevi (3)1, will
not lose their right to be considered for regularisation,
merely because the one-time exercise was completed
without considering their cases, or because the six-
month period mentioned in para 53 of Umadevi (3)1
has expired. The one-time exercise should consider all
daily-wage/ad hoc/casual employees who had put in
10 years of continuous service as on 10-4-2006
without availing the protection of any interim orders
of courts or Tribunals. If any employer had held the
one- time exercise in terms of para 53 of Umadevi
(3)1, but did not consider the cases of some
employees who were entitled to the benefit of para 53
of Umadevi (3)1, the employer concerned should
consider their cases also, as a continuation of the
one-time exercise. The one-time exercise will be
concluded only when all the employees who are
entitled to be considered in terms of para 53 of
Umadevi (3)1, are so considered.
11. The object behind the said direction in
para 53 of Umadevi (3)¹ is twofold. 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)1 was rendered, are
considered for regularisation 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
regularise 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 regularisation. The fact
that the employer has not undertaken such exercise
of regularisation within six months of the decision in
Umadevi (3)1 or that such exercise was undertaken
only in regard to a limited few, will not disentitle such
employees, the right to be considered for
regularisation in terms of the above directions in
Umadevi (3) as a one-time measure.
(Emphasis supplied)
18.2. In the case of Union of India and others
Vs. Vartak Labour Union (2)11, the Hon'ble
Supreme Court at paragraph No.17 has held as under:
"17. We are of the opinion that the respondent Union's
claim for regularisation of its members merely because
they have been working for the BRO for a considerable
period of time cannot be granted in light of several
decisions of this Court, wherein it has been consistently
held that casual employment terminates when the same
is discontinued, and merely because a temporary or
casual worker has been engaged beyond the period of
his employment, he would not be entitled to be
absorbed in regular service or made permanent, if the
original appointment was not in terms of the process
envisaged by the relevant rules."
(2011) 4 SCC 200
18.3. In the case of Narendra Kumar Tiwari
and others Vs. State of Jharkhan and others12,
the Hon'ble Supreme Court at paragraph Nos.7, 8 and
9 has held as follows:
"7. The purpose and intent of the decision in
Umadevi (3)2 was therefore twofold, namely, to prevent
irregular or illegal appointments in the future and
secondly, to confer a benefit on those who has been
irregularly appointed in the past. The fact that the State
of Jharkhand continued with the irregular appointment
for almost a decade after the decision in Umadevi (3)2 is
a clear indication that it believes that it was all right to
continue with irregular appointments, and whenever
required, terminate the services of the irregularly
appointed employees on the ground that they were
irregularly appointed. This is nothing but a form of
exploitation of the employees by not giving them the
benefits of regularisation and by placing the sword of
Damocles over their head. This is precisely what Umadevi
(3)2 and Kesari3 sought to avoid.
8. If a strict and literal interpretation, forgetting
the spirit of the decision of the Constitution Bench in
Umadevi (3)2, is to be taken into consideration then no
irregularly appointed employee of the State of Jharkhand
could ever be regularised since that State came into
existence only on 15-11-2000 and the cut-off date was
fixed as 10-4-2006. In other words, in this manner the
pernicious practice of indefinitely continuing irregularly
appointed employees would be perpetuated contrary to
the intent of the Constitution Bench.
9. The High court as well as the State of Jharkhand
ought to have considered the entire issue in a contextual
perspective and not only from the point of view of the
interest of the State, financial or otherwise- the interest of
the employees is also required to be kept in mind. What
has eventually been achieved by the State of Jharkhand is
to short circuit the process of regular appointments and
(2018) 8 SCC 238
instead make appointments on an irregular basis. This is
hardly good governance. "
(Emphasis supplied)
18.4. In the case of Sheo Narain Nagar5, the
Hon'ble Supreme Court at paragraph Nos.7 & 8 has
held as follows:
"7. When we consider the prevailing scenario, it is
painful to note that the decision in Umadevi (3)4 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
Umadevi (3)4. 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 Umadevi (3)4 has been ignored and
conveniently overlooked by various State Governments/
authorities. We regretfully make the observation that
Umadevi (3)4 has not been 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 regularising the services
of incumbents. They are being continued in service without
payment of due salary for which they are entitled on the
basis of Articles 14, 16 read with Article 34(1) of the
Constitution of India as if they have no constitutional
protection as envisaged in D.S. Nakara v. Union of India"8,
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 Umadevi (3)4. Thus, the time
has come to stop the situation where Umadevi (3)4 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
Umadevi (3)4 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/ad hoc basis or otherwise. This kind of action is
not permissible when we consider the pith and substance
of true spirit in Umadevi (3)4.
8. xxxxxxx
9. The High Court dismissed the writ application
relying on the decision in Umadevi (3)4. But the appellants
were employed basically in the year 1993; they had
rendered service for three years, when they were offered
the service on contract basis; it was not the case of back
door entry; and there were no Rules in place for offering
such kind of appointment. Thus, the appointment could not
be said to be illegal and in contravention of Rules, as there
were no such Rules available at the relevant point of time,
when their temporary status was conferred w.e.f. 2-10-
2002. The appellants were required to be appointed on
regular basis as a one-time measure, as laid down in para
53 of Umadevi (3)4. Since the appellants had completed 10
years of service and temporary status had been given by
the respondents with retrospective effect from 2-10-2002,
we direct that the services of the appellants be regularised
from the said date i.e. 2-10-2002, consequential benefits
and the arrears of pay also to be paid to the appellants
within a period of three months from today."
(Emphasis supplied)
18.5. In the case of Union of India and others
Vs. Central Administrative Tribunal and others7,
the Hon'ble Supreme Court after noticing the
Judgment in the case of Umadevi1, and various other
Judgments including M.L.Kesari2 and Narendra
Kumar Tiwari12 at paragraph Nos.20 and 21 has held
as follows:
"20.The judgment of this Court in Umadevi (3)8 does
not preclude the claims of employees who seek
regularisation after the exercise has been undertaken with
respect to some employees, provided that the said
employees have completed the years of service as
mandated by Umadevi (3)8. The ruling casts an obligation
on the State and its instrumentalities to grant a fair
opportunity of regularisation to all such employees which
are entitled according to the mandate under Umadevi (3)8
and ensure that the benefit is not conferred on a limited
few. The subsequent regularisation of employees who
have completed the requisite period of service is to be
considered as a continuation of the one-time exercise.
21. xxxxx
22. The Court noted in the above judgment that if
a strict and literal interpretation was given to the decision
in Umadevi (3)8, no employee from the State of
Jharkhand appointed on an irregular basis could ever be
regularised as the State was formed on 15-11-2000 and
the cut-off date had been fixed as 10-4-2006. The intent
of the Court was to grant similarly-placed employees who
had put the requisite years of service as mandated by
Umadevi (3)8, the benefit of regularisation. The Court
thus held that the Jharkhand Sarkar ke Adhinasth
Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa
Niyamitikaran Niyamawali, 2015 ("the Regularsation
Rules") must be interpreted in a pragmatic manner and
employees of the State who had completed 10 years of
service on the date of promulgation of the rules, ought to
be regularised. In doing so, the Court ensured that
employees in the State of Jharkhand who had completed
the same years of service as employees from other
States, are granted parity in terms of regularisation. The
spirit of non- discrimination and equity runs through the
decisions in Umadevi (3)8, M.L. Kesari11 and Narendra
Kumar Tiwari12."
(Emphasis supplied)
19. The underlying position that is forthcoming
from the judgments of the Hon'ble Supreme Court as
noticed in para 18 above are that having regard to the
Constitution Bench judgment in the case of
Umadevi1, the State was required to consider the
cases of employees who have working as daily
wager/ad-hoc/casual employees for more than ten
years and the one-time exercise was required to be
completed within six months. It is also noticed that
the object of the direction in the case of Umadevi1 is
to ensure that those who have put in work for more
than ten years continuous service without protection
of interim order by any Court, be considered for
regularization in view of their long service and also to
ensure that the departments/instrumentalities do not
perpetuate the practice of employing persons on daily
wage/ad-hoc/casual basis for long periods. It has
been held that, if the exercise of regularization within
six months was undertaken only with regard to a
limited few, that will not disentitle such employees,
the right to be considered for regularization in terms
of the judgment in the case of Umadevi1 and that
consideration of such employees was required to be
construed as part of the one-time exercise.
20. The case of the State that the respondents
are not entitled to be regularized having regard to the
dictum of the Hon'ble Supreme Court in the case of
Umadevi1 is ex-facie liable to be rejected inasmuch
as vide letter dated 15.11.2014 (Annexure-A27), the
Commissioner of Commercial Taxes had written to the
Additional Commissioner of Commercial Taxes and the
Joint Commissioner of Commercial Taxes of various
zones intimating that upon consideration of the
representation of the Hamalies for regularization, the
State had clarified that the Hamalies working in the
department of Commercial Taxes on part time basis
cannot be regularized under the Karnataka Daily Wage
Employees' Welfare Act, 2012 and hence, their
request for regularization of service was not
considered. Further, the wage of the Hamalies could
be fixed under the Minimum Wages Act, 1948.
However, the wages payable as per the Minimum
Wages Act was subject to the fact that Hamalies
should not be utilized for more than 4 hours per day
and the wages should not exceed `122/- at the rate of
`30 to `50 per day for maximum four hours.
21. In response to the said letter, the
Additional Commissioner of Commercial Taxes vide
letter dated 12.12.2014, (Annexure-A28) has
categorically communicated that the Hamalies were
appointed since 1984-85 and restricting utilizing their
services for a period not exceeding four hours would
be difficult since the services/assistance of Hamalies
played an important role in carrying out the physical
verification of goods during vigilance activities of the
officers of the department and sought for review of
the communication sent to them. It was further
communicated that the services of Hamalies could be
utilized to the maximum time in vigilance activities as
Group-D and Bill Collector posts in the division which
were vacant.
22. It is clear from the aforesaid two
communications dated 15.11.2014 and 12.12.2014
that the Hamalies were working at the Commercial
Taxes Department and were rendering a full time job
for more than 30 years. There is no material placed
by the State to demonstrate that the cases of the
respondents were considered for regularization
consequent to the judgment in the case of Umadevi1.
23. The spirit of non-discrimination and equity
which runs through the judgments of the Hon'ble
Supreme Court in the case of Umadevi1, M.L.
Kesari2 and Narendra Kumar Tiwari11 as noticed in
the case of Union of India and Central
Administrative Tribunal7 and having regard to the
fact that the State having utilized the services of the
Hamalies during the heydays of their life-time and at
the present fag end of their lives ought not to be
permitted to leave them in a destitute situation and
the said action would clearly be exploitative to say the
least which is impermissible having regard to the
constitutional scheme as held in the case of
Umadevi1 and interpreted in the subsequent
judgments as noticed above.
24. Having regard to the above-mentioned and
having regard to the fact that the Tribunal has
considered the entire factual matrix of the matter and
noticed the legal position as also various notifications
issued by the State and as well as considered the case
of the respondents on the aspect of parity after
noticing similarly placed persons whose services have
been regularized, and in view of the factual and legal
position as noticed above, the direction issued by the
Tribunal to the state authorities is just and proper and
we find no ground to interfere with the order of the
Tribunal. Hence, the question framed for consideration
is answered in the negative.
25. In view of the aforementioned, the writ
petition is dismissed as being devoid of merits.
Sd/-
JUDGE
Sd/-
JUDGE
Svh/Naa
