Karnataka High Court
Shri.Shridhar vs The State Of Karnataka on 20 December, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.105996 OF 2016 (S - R)
C/W
WRIT PETITION No.106506 OF 2016 (S - R)
WRIT PETITION No.100738 OF 2017 (S - RES)
IN WRIT PETITION No.105996 OF 2016
BETWEEN:
SMT.HEMAVATI
D/O VENKAPPA MURGOD
AGE: 61 YEARS
OCC: RETIRED
C/O S.V. MURGOD
S.G.PUTTANNAVAR BUILDING
MAIN ROAD, BYADAGI
DIST: HAVERI.
... PETITIONER
(BY SRI K.L.PATIL AND SRI S.A.SONDUR, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
PRINCIPAL SECRETARY
DEPARTMENT OF EDUCATION
M.S.BUILDING,
2
BENGALURU - 560 001.
2. THE DIRECTOR OF
VOCATIONAL EDUCATION
3RD MAIN, 18TH CROSS
MALLESHWARAM
BENGALURU - 560 001.
3. THE COMMISSIONER
DEPARTMENT OF
PUBLIC INSTRUCTIONS
RODDA ROAD
DHARWAD - 580 004.
4. THE DEPUTY DIRECTOR PRE-UNIVERSITY
DEPARTMENT OF EDUCATION
DHARWAD.
5. THE PRINCIPAL
B.R.AMBEDKAR EDUCATION SOCIETY
SHIDENUR - 581 157
TQ: BYADAGI
DISTRICT: HAVERI.
6. THE PRINCIPAL
B.E.S.M ARTS AND
COMMERCE COLLEGE
BYADAGI - 581 106,
DIST: HAVERI.
... RESPONDENTS
(BY SRI GANGADHAR J.M., AAG A/W
SRI V.S.KALASURMATH, HCGP FOR R1 TO R4;
NOTICE TO R5 - R6 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO A. DIRECT THE
3
RESPONDENTS TO SETTLE THE PENSION AND PENSIONARY
BENEFITS ON PAR WITH SIMILARLY PLACED GOVERNMENT/AIDED
SCHOOL JOB ORIENTED DIPLOMA COURSE WORKER/TEACHERS
AND ALONG WITH INTEREST AT 12% IN A PERIOD OF TWO
MONTHS AND ETC.,
IN WRIT PETITION No.106506 OF 2016
BETWEEN:
SMT.VANITA
W/O GOPALRAO KULAKARNI
AGE: 61 YEARS
OCC: RETIRED FROM SERVICE
C/O PLOT NO.65
SCHEME NO.17, BUDA COLONY
OPP: SANT MEERA HIGH SCHOOL
ANGOL, BELAGAVI.
... PETITIONER
(BY SRI K.L.PATIL AND SRI S.A.SONDUR, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY
PRINCIPAL SECRETARY
DEPARTMENT OF EDUCATION
M.S. BUILDING
BENGALURU - 560 001.
2. THE DIRECTOR
DEPT. OF VOCATIONAL EDUCATION
MALLESHWARAM
BENGALURU - 560 001.
4
3. THE COMMISSIONER
DEPARTMENT OF PUBLIC INSTRUCTIONS
RODDHA ROAD
DHARWAD - 580 008.
4. THE DEPUTY DIRECTOR OF PRE-UNIVERSITY
DEPARTMENT OF EDUCATION
DHARWAD.
5. THE PRINCIPAL
VISHWA BHARAT SEVA SAMITI'S
PANDIT NEHRU PRE-UNIVERSITY COLLEGE
1644, ALWAN GALLI, SHAHAPUR
BELAGAVI - 590 003.
6. THE PRINCIPAL
GOVT. SARASWATI GIRLS'
PRE-UNIVERSITY COLLEGE
(ART, COMMERCE AND SCIENCE SECTION)
SHAHAPUR
BELAGAVI - 590 003.
7. THE HEAD MASTER
BALIKA ADARSHA VIDYALAYA
THE THALAKWADI FEMALE
EDUCATION SOCIETY
MANGALWAR PETH
TILAKWAD, BELAGAVI.
... RESPONDENTS
(BY SRI GANGADHAR J.M., AAG A/W
SRI V.S.KALASURMATH, HCGP FOR R1 TO R4;
NOTICE TO R5-R7 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO A. DIRECT THE
RESPONDENTS TO SETTLE THE PENSION AND PENSIONARY
BENEFITS ON PAR WITH SIMILARLY PLACED GOVERNMENT/AIDED
5
SCHOOL JOB ORIENTED DIPLOMA COURSE WORKER/TEACHERS
AND ALONG WITH INTEREST AT 12% IN A PERIOD OF TWO
MONTHS AND ETC.
IN WRIT PETITION No.100738 OF 2017
BETWEEN:
SHRI.SHRIDHAR
S/O NARAYANCHAR GUDI
AGE: 62 YEARS
OCC: RETIRED
R/O AGRAHAAR
NEAR VEERANARAYAN TEMPLE
POST: GADAG
DIST: GADAG - 582 101.
... PETITIONER
(BY SRI K.L.PATIL AND SRI S.A.SONDUR, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTMENT OF EDUCATION
M.S. BUILDING
BENGALURU - 560 001.
2. THE DIRECTOR OF VOCATIONAL EDUCATION
8TH FLOOR,
VISHWESHVARAYYA TOWERS
AMBEDKAR BEEDHI
BENGALURU - 560 004.
3. THE COMMISSIONER
DEPARTMENT OF PUBLIC INSTRUCTIONS
GOVERNMENT OF KARNATAKA
6
RODHA ROAD
DHARWAD - 580 001.
4. DEPUTY DIRECTOR OF
PRE UNIVERSITY EDUCATION
GADAG,
DIST: GADAG - 582 101.
5. THE PRINCIPAL
MUNICIPAL COMPOSITE PRE-UNIVERSITY
JOB ORIENTED PU DIPLOMA COURSES
GADAG - 582 101.
6. THE HEAD MASTER
JANATA VIDYALAYA BEDAKANI
P:BEDAKANI,
T: SIDDAPUR
DIST: UTTAR KANNADA - 581 355.
... RESPONDENTS
(BY SRI GANGADHAR J.M., AAG A/W
SRI V.S.KALASURMATH, HCGP FOR R1 TO R4;
SRI RAJASHEKHAR S.GUNJALLI, ADVOCATE FOR R5;
R6 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
SECTION 5 OF KARNATAKA PART TIME JOB ORIENTED COURSE
EMPLOYEES ABSORPTION ACT, 2011 (ACT NO.22/2011)
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
7
ORDER
The petitioners, in these cases, seek a declaration declaring
that Section 5 of the Karnataka Part Time Job Oriented Course
Employees Absorption Act, 2011 is unconstitutional for it being
arbitrary and violative of Article 14 of the Constitution of India and
have sought certain consequential reliefs upon such declaration.
Since all these petitions raise a common issue of entitlement of
service benefits qua the aforesaid Act, these matters are taken up
together and considered by this common order. For the sake of
convenience, facts in Writ Petition No.105996 of 2016 are noticed.
2. The facts in brief are as follows:
The petitioner was appointed as a part time worker/teacher in
Tailoring and Embroidery in Job Oriented Diploma Course at the 5th
respondent/B.R.Ambekar Education Society, Shidenur on
01-08-1991. It is the claim of the petitioner that her appointment
was approved by the competent authority on 28-09-1991. Later
she joined the 6th respondent/B.E.M.S. Arts and Commerce College,
Byadagi on 15-07-1992. Owing to the fact that the petitioner and
several other employees working in job oriented courses had to be
regularized, the Government of Karnataka notified the Karnataka
Part Time Job Oriented Course Employees Absorption Act, 2011
('the Act' for short). The petitioner, like every other job oriented
course employee, was absorbed under the Act. She continued to
work after the absorption and retired on attaining the age of
superannuation on 31-10-2013. It is the claim of the petitioner
that she is entitled to terminal benefits for having worked close to
22 years under the services of the State Government. That having
not been granted, she has knocked at the doors of this Court in the
present petition seeking a direction by issuance of a writ in the
nature of mandamus for grant of pension and other terminal
benefits.
3. During the pendency of the petition, the petition is
amended to seek a declaration with regard to the constitutional
validity of Section 5 of the Act. All other companion petitions also
raise a similar challenge. The respective dates of entry into service
and date of retirement vary, but in effect, every petition seek a
declaration that Section 5 of the Act to be declared as
unconstitutional.
4. Heard Sri K.L.Patil, learned counsel appearing for the
petitioners and Sri J.M. Gangadhar, learned Additional Advocate
General appearing for respondents 1 to 4 in all the petitions and
Sri Rajashekhar S Gunjalli, learned counsel for respondent No.5 in
W.P.No.100738 of 2017.
5. The learned counsel Sri K.L. Patil representing the
petitioners would vehemently contend that the petitioners were not
in a position to bargain at the time when they were offered
absorption into the services of Government. What was more
important to them at that point in time was absorption into the
services and, therefore, they quietly took it and are now challenging
the provision of the Act which takes away the right of the
petitioners even to receive pension. He would seek to place
reliance upon plethora of judgments rendered by several co-
ordinate Benches of this Court which all pertain to regularization of
employees working in job oriented courses. They would bear
consideration as per the relevance in the course of the order.
6. Per-contra, the learned Additional Advocate General
Sri J.M. Gangadhar would vehemently refute the submissions to
contend that the petitioners were offered absorption under the Act.
Section 5 of the Act takes away all benefits. It only provides
security of tenure and, therefore, merely because the petitioners
claim to be aggrieved by a particular section at a later point in time,
they cannot contend that the provision itself is un-constitutional, as
benefit of the Act is taken in its entirety by the petitioners. He
would also seek to place reliance upon several judgments of the
Apex Court and that of co-ordinate Benches of this Court, all of
which will bear consideration as per their relevance in the course of
the order.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts are not in dispute. The petitioners,
in all these cases, are employees who were working in job oriented
courses, their dates of appointment, approval of appointments and
dates of retirement vary. They are as per the chart given below:
Particulars Date of Approval of Date of
"Sl.No. Appointment the Retirement
Appointment
1 Hemavati 01/08/1991 28/09/1991 31/10/2013
Murgod (Annexure- (Annexure- (Annexure-E)
A) B)
2 Vanita 01/07/1988 28/03/1993 29/02/2016
Kulkarni (Annexure- (Annexure- (Annexure-F)
A) A1)
3 Shridhar Gudi 05/10/1988 11/11/1988 28/02/2014
(Annexure- (Annexure- (Superannuation)"
A) B)
For an illustration, the petitioner in Writ Petition No.105996 of 2016
is appointed on 01-08-1991; appointment is approved on
28-09-1991 and the Act absorbs the petitioner into the services of
the State. The petitioner continues under the Act from 30-05-2011
and retires on attaining the age of superannuation on 31-10-2013
after completing close to 22 years of service. These factors remain
the same in all the other cases except variance in the date of
appointment, date of approval and date of retirement. All of them
have served more than 22 years of service in job oriented courses
either in teaching capacity or in any non-teaching capacity. These
are facts which are not in dispute. One common stream that runs
through all these petitions is that all the petitioners got absorbed in
terms of the Act and all these petitioners after their respective
dates of retirement have called in question Section 5 of the Act
which takes away the right to receive terminal benefits. In the light
of declaration being sought qua Section 5 of the Act, I deem it
appropriate to notice certain provisions of the Act.
9. The State Government thought it fit to promulgate an Act
to absorb employees working in part-time job oriented courses.
The preamble to the Act reads as follows:
"Act 22 of 2011,- It is considered necessary to enact a
legislation to absorb the part time Job Oriented Course
employees working in the job oriented courses in Pre-university
Education consequent upon the closure of Job Oriented Courses
from the academic year 2011-12 and also provide for, -
(1) Absorption of the teaching and non-teaching staff, who
have worked for more than five years as part time
employees in Government JOC institutions, in vacant
posts of any of the Government Department.
(2) Absorption of the teaching and non-teaching staff, who
have worked for more than five years in Private Aided
Institutions as part time employees, in vacant post of any
of the Private Aided JOC institutions.
(3) Certain other matters connected therewith or incidental
thereto."
The Act was promulgated to absorb all such employees working in
part-time Job Oriented Courses. Section 3, 4 and 5 of the Act
which are relevant for consideration of the lis read as follows:
"3. Absorption of the part time Job Oriented Course
employee.- (1) Notwithstanding anything contained in any
other law for the time being in force, the part time Job Oriented
Course employees whose names are notified by the Government
under this section, except those working in private aided
institutions, shall be considered for absorption, on following the
reservation policy of the State, in such category of equivalent
vacant post and service in Pre-university Education service as
may be specified therein, as a onetime measure:
Provided that if sufficient number of vacant posts are not
available in Pre-university Education service, the Government
shall obtain the information regarding number of vacancies in
equivalent posts available in other departments and then notify
the eligible candidates to these posts:
Provided further that,-
(a) no part time Job Oriented Course employee shall be
absorbed as above, unless he has discharged the duties
of the post continuously as part time Job Oriented Course
employee for not less than five years without any breaks
in his service for the reasons which are directly
attributable to him;
(b) no part time Job Oriented Course employee shall be
absorbed unless he possessed the qualification prescribed
for the post on the date of his absorption under the
relevant rules of recruitment;
(c) the appointment shall not be made under this Act against
any post earmarked to be filled from among candidates
belonging to the Scheduled Castes or the Scheduled
Tribes in accordance with the reservation or provided by
or under any law or any order unless there are candidates
belonging to those classes available from among the part
time Job Oriented Course employees to be absorbed,
otherwise such posts shall be treated as back-log to be
filled by process of special recruitment from among these
classes.
(2) In case of part time Job Oriented Course employees
working in private aided institutions, the Government may direct
the aided institutions to absorb the eligible persons against the
suitable vacancies available or against the future vacancies in
any private aided institutions.
4. Procedure for absorption of part time Job
Oriented Course employee.- (1) The State Government shall
constitute a Committee consisting of such number of members
as it deems fit, for the purpose of recommending to the State
Government, the names of part time Job Oriented Course
employees, who fulfills the conditions specified in this Act and
eligible for absorption. The State Government shall on receipt of
such recommendation, notify the names so recommended by
the Committee in accordance with section 3.
(2) The Government shall also constitute separately one
such committee in respect of part time Job Oriented Course
employees in private aided institutions.
(3) The Committee shall determine its own procedure.
(4) The entire process of recommendation of names of
eligible part time Job Oriented Course employees and notifying
such names shall as far as may be completed within one year
from the date of commencement of this Act.
(5) The Appointing Authority shall after verifying the
antecedents of the persons notified under sub-section (1) and
after verifying the suitability for appointment shall absorb him in
the notified equivalent vacant post in accordance with rules 10
and 12 of the Karnataka Civil Services (General Recruitment)
Rules, 1977:
Provided that in respect of private aided institutions, the
Appointing Authority in such institutions shall appoint the
notified persons of aided institutions in the vacancies available
in those institutions.
5. Pay fixation, seniority and leave of part time Job
Oriented Course employee absorbed under these rules.-
(1) Notwithstanding anything contained in any other law
for the time being in force or any other rules governing
conditions of service made or deemed to have been made
under the Karnataka State Civil Services Act, 1978
(Karnataka Act 14 of 1990), the initial basic pay of an
absorbed part time Job Oriented Course employees,
under this Act after he reports to duty, shall be fixed at
the minimum of the time scale of pay of the category of
post in which he is absorbed and the services rendered
before his absorption shall not be counted for the
purposes of pay, seniority and leave or pension:
Provided that in respect of private aided institutions, the
part time Job Oriented Course employees so appointed shall be
eligible for similar benefits in aided institutions.
(2) The inter-se seniority of the persons absorbed under
this Act shall be determined according to the length of service of
the said part time Job Oriented Course employee from the date
of completion of five years, and if the length of service of two or
more persons is same, the older in age is treated as senior to
the person who is younger in age."
(Emphasis supplied)
Section 3 deals with absorption of such employees who were
working in part-time job oriented course and whose names were
notified in terms of Section 3 except those working in private aided
institutions. The procedure for absorption is dealt with under
Section 4. In terms of Sections 3 and 4 of the Act, the petitioners
become employees of the State Government in equivalent posts be
it teaching or non-teaching, to whom the Rules of the State become
applicable i.e., K.C.S.R.s and allied Rules. Section 5 which forms
the fulcrum of the lis deals with pay fixation, seniority and leave of
part-time job oriented course employees absorbed under the Rules.
Sub-section (1) of Section 5 gives all the benefits of absorption
including basic fixation of pay and time scale of pay to the category
of posts in which they are absorbed into, but the past service prior
to the date of absorption is denied for the purpose of pay, seniority,
leave and pension. It is this mandate that has driven the petitioners
to this Court in these petitions. The submission is that the
petitioners were given the choice of absorption and were in a take it
or leave it situation and had to get themselves absorbed. When
pension was not paid, they have now sought declaration declaring
Section 5 of the Act, insofar as it denies the aforesaid benefits, as
unconstitutional.
10. The petitioners were all working in part-time, employed in
job oriented courses viz., Tailoring, Embroidering and Automobiles.
Though the petitioners tried to project that they were not in a
position to bargain with regard to pay, seniority, leave or pension at
the time of absorption, what is to be noticed is that, they were
part-time employees. Whether they have rendered full time service
or not is not within the domain of this Court to decide. The
submission that the Act or the Rules take away the right to pension
and on that score to declare it to be unconstitutional is wholly
untenable. The petitioners became regular employees of the State
only under the Act. Having accepted the conditions of the Act and
then becoming employees of the State on part-time basis, the
petitioners cannot contend that they be given pension or any other
benefit that is available to a regular employee for the service that
they had rendered on part-time basis.
11. It may be grave situation where few of the employees
who get absorbed retired within two or five years or even nine
years after such absorption. Their pay can be notionally fixed, but
they were entitled to such pay as every other Government
employee would be entitled to. Insofar as pension is concerned,
the same is governed by the Karnataka Civil Service Rules which
require a minimum of 10 years of service, service I mean, regular
service, akin to a regular employee, doing full time work to become
entitled to even invalid pension if not regular pension. It is an
admitted fact that none of the petitioners in these petitions have
completed even 10 years of service after absorption. Therefore,
this Court cannot now render the conditions of absorption illusory
by granting the petitioners pension for part-time duties that they
had performed be it 20 years or 25 years even. The Rules of
absorption generally generate hardship, as the conditions in the
Rules of absorption are binding upon the parties who accepted such
Rules. On the basis of such election, they cannot be held to be
unconstitutional at a later point in time, because it takes away the
right to receive certain benefits.
12. The Apex Court in the case of INDU SHEKHAR SINGH
AND OTHERS v. STATE OF U.P. AND OTHERS1 has held as
follows:
(2006) 8 SCC 129
"23. The High Court evidently proceeded on the premise
that seniority is a fundamental right and thereby, in our opinion,
committed a manifest error.
24. The question which arises is as to whether the terms
and conditions imposed by the State in the matter of absorption
of Respondents 2 to 4 in the permanent service of the
Ghaziabad Development Authority is ultra vires Article 14 of the
Constitution of India.
25. The State was making an offer to the
respondents not in terms of any specific power under the
Rules, but in exercise of its residuary power (assuming
that the same was available). The State, therefore, was
within its right to impose conditions. The respondents
exercised their right of election. They could have
accepted the said offer or rejected the same. While
making the said offer, the State categorically stated that
for the purpose of fixation of seniority, they would not be
obtaining the benefits of services rendered in the U.P. Jal
Nigam and would be placed below in the cadre till the
date of absorption. The submission of Mr Verma that the
period for which they were with the Authority by way of
deputation, should have been considered towards
seniority cannot be accepted simply for the reason that
till they were absorbed, they continued to be in the
employment of the Jal Nigam. Furthermore, the said
condition imposed is backed by another condition that the
deputed employee who is seeking for absorption shall be
placed below the officers appointed in the cadre till the
date of absorption. Respondents 2 to 4 accepted the said
offer without any demur on 3-9-1987, 28-11-1991 and
6-4-1987 respectively.
26. They, therefore, exercised their right of option. Once
they obtained entry on the basis of election, they cannot be
allowed to turn round and contend that the conditions are
illegal. (See R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC
683], Ramankutty Guptan v. Avara [(1994) 2 SCC 642]
and Bank of India v. O.P. Swarnakar [(2003) 2 SCC 721 : 2003
SCC (L&S) 200].) Furthermore, there is no fundamental right in
regard to the counting of the services rendered in an
autonomous body. The past services can be taken into
consideration only when the Rules permit the same or where a
special situation exists, which would entitle the employee to
obtain such benefit of past service.
... ... ...
55. It was thus, open to the respondents herein not
to agree to in spite of the said conditions as they had
already been working with a statutory authority; they,
however, expressly consented to do so. They must have
exercised their option, having regard to benefits to which
they were entitled to in the new post. Once such option is
exercised, the consequences attached thereto would
ensue. (See HEC Voluntary Retd. Employees Welfare
Society v. Heavy Engg. Corpn. Ltd. [(2006) 3 SCC 708:
2006 SCC (L&S) 602: JT (2006) 3 SC 102])"
(Emphasis supplied)
Though the issue before the Apex Court was concerning seniority
qua an Absorption Rule and the High Court had held in favour of the
employees that they are entitled to fundamental right of seniority,
the Apex Court upturns the judgment of the High Court and
observes as quoted hereinabove. The Apex Court holds that
employees' who exercise their right of option, cannot be seen to be
challenging it after having accepted the conditions. They could have
accepted or rejected. The Apex Court in a later judgment in PEPSU
ROAD TRANSPORT CORPORATION v. S.K. SHARMA AND
OTHERS2 has held as follows:
(2016) 9 SCC 206
"24. The High Court further erred in relying upon law
which is applicable when there is no merger of government
concern with the private concern but only individual employees
are transferred on deputation or on foreign service to other
organisations/services. The ordinary rules providing for asking
of option or issuance of letters of absorption depend upon the
nature of stipulations which may get attracted to a case of
deputation. There may be similar stipulations in case of merger
by transfer. But if there are no such stipulations like in the
present case then the transferee concern like the Corporation
has no obligation to ask for options and to issue letters of
options to individual employees who become employees of the
transferee organisation simply by virtue of order and action of
transfer of the whole concern leading to merger. No doubt in
case of any hardship, the affected employees have the option to
protest and challenge either the merger itself or any adverse
stipulation. However, if the employees choose to accept the
transition of their service from one concern to another and
acquiesce, then after decades and especially after their
retirement they cannot be permitted to turn back and challenge
the entire developments after a gap of decades."
The Apex Court holds that if the employees choose to accept the
conditions, they would have acquiesced in those conditions and
then after decades, especially after retirement, they cannot be
permitted to turn back and challenge the very source from which
they were born.
13. Since the prayer sought is to declare Section 5 of the Act
to be unconstitutional, it becomes germane to notice identical
promulgation in service jurisprudence in the case of NAGALAND
SENIOR GOVERNMENT EMPLOYEES WELFARE ASSOCIATION
AND OTHERS v. STATE OF NAGALAND AND OTHERS3 wherein
the Apex Court holds as follows:
"(C) Presumption of constitutionality
41. That there is always a presumption in favour of the
constitutionality of an enactment and that the burden is upon
the person who attacks it, is a fairly well-settled proposition.
In Mohd. Hanif Quareshi v. State of Bihar [AIR 1958 SC 731]
this Court stated: (AIR pp. 740-41, para 15)
"15. ... The classification, it has been held, may be
founded on different bases, namely, geographical, or
according to objects or occupations or the like and what is
necessary is that there must be a nexus between the
basis of classification and the object of the Act under
consideration. The pronouncements of this Court further
establish, amongst other things, that there is always a
presumption in favour of the constitutionality of an
enactment and that the burden is upon him, who attacks
it, to show that there has been a clear violation of the
constitutional principles. The courts, it is accepted, must
presume that the legislature understands and correctly
appreciates the needs of its own people, that its laws are
directed to problems made manifest by experience and
that its discriminations are based on adequate grounds."
42. The aforesaid legal position was reiterated in Mahant
Moti Das v. S.P. Sahi [AIR 1959 SC 942] in the following words:
(AIR p. 947, para 7)
"7. ... The decisions of this Court further establish
that there is a presumption in favour of the
constitutionality of an enactment and the burden is upon
him who attacks it to show that there has been a clear
transgression of the constitutional guarantee; that it must
(2010) 7 SCC 643
be presumed that the legislature understands and
correctly appreciates the needs of its own people and that
its laws are directed to problems made manifest by
experience and that its discriminations are based on
adequate grounds; and further that the legislature is free
to recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed to
be the clearest."
43. In State of U.P. v. Kartar Singh [AIR 1964 SC
1135 : (1964) 2 Cri LJ 229 : (1964) 6 SCR 679] the
Constitution Bench of this Court held that where a party
seeks to impeach the validity of a rule on the ground of
such rule offending Article 14, the burden is on him to
plead and prove infirmity. This Court said: (AIR p. 1138,
para 15)
"15. ..., if the rule has to be struck down as
imposing unreasonable or discriminatory standards,
it could not be done merely on any a priori
reasoning but only as a result of materials placed
before the Court by way of scientific analysis. It is
obvious that this can be done only when the party
invoking the protection of Article 14 makes
averments with details to sustain such a plea and
leads evidence to establish his allegations. That
where a party seeks to impeach the validity of a
rule made by a competent authority on the ground
that the rules offend Article 14 the burden is on him
to plead and prove the infirmity is too well
established to need elaboration. If, therefore, the
respondent desired to challenge the validity of the
rule on the ground either of its unreasonableness or
its discriminatory nature, he had to lay a foundation
for it by setting out the facts necessary to sustain
such a plea and adduce cogent and convincing
evidence to make out his case, for there is a
presumption that every factor which is relevant or
material has been taken into account in formulating
the classification of the zones and the prescription
of the minimum standards to each zone, and where
we have a rule framed with the assistance of a
committee containing experts such as the one
constituted under Section 3 of the Act, that
presumption is strong, if not overwhelming."
44. In Sub-Divisional Magistrate, Delhi v. Ram Kali [AIR
1968 SC 1 : 1968 Cri LJ 82] the Constitution Bench of this Court
reiterated the legal position thus: (AIR p. 3, para 5)
"5. ... The presumption is always in favour of the
constitutionality of an enactment, since it must be
assumed that the legislature understands and correctly
appreciates the needs of its own people, and its laws are
directed to problems made manifest by experience and its
discriminations are based on adequate grounds."
45. In Pathumma v. State of Kerala [(1978) 2 SCC
1] a seven-Judge Bench of this Court highlighted that the
legislature is in the best position to understand and
appreciate the needs of the people as enjoined by the
Constitution. It was stated: (SCC p. 9, para 6)
"6. It is obvious that the legislature is in the
best position to understand and appreciate the
needs of the people as enjoined by the Constitution
to bring about social reforms for the upliftment of
the backward and the weaker sections of the
society and for the improvement of the lot of poor
people. The Court will, therefore, interfere in this
process only when the statute is clearly violative of
the right conferred on the citizen under Part III of
the Constitution or when the Act is beyond the
legislative competence of the legislature or such
other grounds. It is for this reason that the Courts
have recognised that there is always a presumption
in favour of the constitutionality of a statute and
the onus to prove its invalidity lies on the party
which assails the same."
46. A two-Judge Bench of this Court in Fertilisers
and Chemicals Travancore Ltd. v. Kerala SEB [(1988) 3
SCC 382] emphasised that the allegations of
discrimination must be specific and that the action of
governmental authorities must be presumed to be
reasonable and in public interest. It is for the person
assailing it to plead and prove to the contrary."
(Emphasis supplied)
The Apex Court holds that constitutionality of the provision which is
akin to what is called in question in the case at hand is presumed
and the burden will be heavily upon the person attacking it, to
demonstrate unconstitutionality. The demonstration by the
petitioners reasonably fail, as this court finds nothing
unconstitutional about the Absorption Act, particularly with the fact
that the petitioners have reaped the benefits of the Act and have
transformed themselves from part-time to full time employees
under the services of the State. On a coalesce of the aforesaid
judgments of the Apex Court what would unmistakably emerge is
that the hardship that is caused is caused due to the benefit that
the petitioners reaped by getting themselves absorbed into the
services of the State under the Act. Conditions cannot be diluted
after it having been accepted by the petitioners.
14. Insofar as the judgment relied on by the learned counsel
for the petitioners, they were all judgments rendered in different
circumstances, few of them had sought regularization of their
services or absorption into the service of the State as they were
similarly placed. Mandamus was issued to the State time and again
to consider cases of those petitioners for regularization or
absorption. It is those cases that are now projected by the
petitioners seeking to demonstrate that the petitioners are entitled
to leave, pay, seniority and pension which the Act specifically takes
it away. A solitary judgment is projected where an employee who
was working in a part-time job oriented course dies which is before
absorption and his name figured in the list in terms of Section 3 of
the Act. The Court directed settlement of all pensionary benefits.
This was challenged before the Apex Court only to be rejected. This
is now sought to be projected that all the petitioners who are
absorbed in these job oriented courses should be granted pension.
The submission is unacceptable, as the co-ordinate Bench or the
Division Bench did not consider Section 5 of the Act. It was
rendered on humanitarian grounds, as the husband of the petitioner
therein had died just before the Absorption Act was notified. The
said judgment would not render any assistance to the petitioners.
15. The judgment relied on in the case of SOMESH
THAPLIYAL AND ANOTHER v. VICE CHANCELLOR, H.N.B.
GARHWAL UNIVERSITY AND ANOTHER4 to contend that it is
open to the employee to challenge the conditions of employment at
a later point in time, if he is aggrieved, is of no assistance. The
Apex Court therein entertained the plea on the score that the
conditions imposed on the petitioners therein were contrary to the
statute. Therefore, the said judgment is distinguishable without
much ado. In the case at hand, the conditions imposed are not
contrary to the statute but in the statute itself. No ground urged by
the petitioners would lead to rendering Section 5 of the Act as
unconstitutional or a mandamus to be issued for grant of pension or
other benefits contrary to Section 5.
16. Petitions lacking in merit stand rejected. The rejection of
the petitions will not however, come in the way of the State
considering the cases of these petitioners, only for the purposes of
Civil Appeal Nos.3922-3925 of 2017 decided on 03-09-2021
pension, owing to the fact that they are already a dwindling tribe
and not for any other benefit.
Pending applications, if any, also stand disposed, as a
consequence.
Sd/-
JUDGE
bkp
CT:MJ
