Karnataka High Court
Basappa Vithal Madar vs The State Of Karnataka And Ors on 6 December, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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WP No. 208498 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6 TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
WRIT PETITION NO. 208498 OF 2017 (S-REG)
BETWEEN:
BASAPPA VITHAL MADAR
AGE: 56 YEARS, OCC: DAILY WAGE CLASS IV
EMPLOYEE, UNDER THE OFFICE OF DISTRICT
OFFICER,
KSK AND VI BOARD, DIC BUILDING,
SHIKHARKHANA ROAD,
STATION ROAD,
VIJAYAPUR-586104.
...PETITIONER
(BY SRI. SANJAY M. JOSHI, ADVOCATE FOR
SRI. D.P. AMBEKAR, ADVOCATE)
Digitally signed
by LUCYGRACE AND:
Location: HIGH
COURT OF 1. THE STATE OF KARNATAKA
KARNATAKA DEPARTMENT OF COMMERCE AND INDUSTRIES,
BY ITS SECRETARY,
V.S. AT BANGALORE-560001.
2. THE KARNATAKA STATE KHADI
AND VILLAGE INDUSTRIES BOARD,
BY ITS CHIEF EXECUTIVE OFFICER,
NO.10, MILLER TANK ROAD,
BANGALORE-560046.
3. THE DISTRICT OFFICER,
KSK AND VI BOARD DIC BUILDING,
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WP No. 208498 of 2017
SHIKHARKHANA ROAD,
STATION ROAD,
VIJAYAPUR-586104.
4. THE DISTRICT OFFICER,
KSK AND VI BOARD, 5TH CROSS,
ATI CAMPUS,
UDYAM BAGH,
BELAGAVI-590008.
...RESPONDENTS
(BY SMT. ARATI PATIL, HCGP FOR R1;
SRI. CHANDRASHEKHAR DASANAKERI, ADVOCATE FOR
R2 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, A
WRIT OR DIRECTION IN THE NATURE OF MANDAMUS
DIRECTING THE RESPONDENTS TO CONSIDER THE INITIAL
DATE OF APPOINTMENT OF THE PETITIONER BEING
05.04.1984 AS THE BASE AND TO COMPUTE THE PERIOD OF
10 YEARS OF CONTINUOUS AND ACTUAL WORK DONE BY HIM
UNDER THE RESPONDENTS FROM THE SAID DATE AND
FURTHER TO REGULARIZE THE SERVICE OF THE PETITIONER
IN THE POST OF CLASS IV EMPLOYEE, AND CONSEQUENTLY
DO ALL THINGS NECESSARY FRO THE IMPLEMENTATION OF
THE SAID DIRECTION SUCH AS TO OPEN THE SERVICE
REGISTER OF THE PETITIONER IMMEDIATELY ON THE DATE OF
COMPLETION OF THE 10 YEARS PERIOD OF HIS SERVICE AS
DAILY WAGES CLASS IV EMPLOYEE, IN TERMS OF ANNEXURE
G, A GO DATED : 03.11.1994, BEARING NO. SIAASU
17SESAAA94, BANGALORE, PUBLISHED IN GOVERNMENT
GAZETTE, NOTIFICATION. ISSUE A WRIT OF MANDAMUS
DIRECTING THE RESPONDENTS TO FIX THE PAY SCALE, GRANT
THE PETITIONER THE PROMOTIONS AS WHEN THEY FELL DUE,
PROVIDE AND COMPUTE THE INCREMENTS, AND THE DA, CCC,
AND OTHER MONITORY BENEFITS, AND PAY THE SAME TO THE
PETITIONER AFTER DEDUCTING THE WAGES ALREADY PAID.
DIRECT THE RESPONDENTS TO CONSIDER THE ELIGIBILITY OF
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WP No. 208498 of 2017
THE PETITIONER FOR ALL SUCH BENEFITS, INCLUDING
PENSION, GPF, LEAVE AND LEAVE ENCASHMENT, ETC., WHICH
HE WOULD BE ENTITLED TO, CONSIDERING THE ENTIRE
PERIOD BEYOND THE INITIAL 10 YEARS OF SERVICE AS A
DAILY WAGER TO HAVING BEEN SPENT AS A REGULAR
EMPLOYEE WITHIN A PERIOD 1 MONTH FROM THE DATE OF
THE ORDER, AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner before this Court seeking following reliefs:
i). A Writ or direction in the nature of
mandamus directing the respondents to
consider the initial date of appointment of the
petitioner being 05.04.1984 as the base and to
compute the period of 10 years of continuous
and actual work done by him under the
respondents from the said date and further to
regularize the service of the petitioner in the
post of class IV employee, and consequently do
all things necessary for the implementation of
the said direction such as to open the service
register of the petitioner immediately on the
date of completion of the 10 years period of his
service as daily wages class IV employee, in
terms of Annexure G, a GO dated: 03.11.1994,
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bearing No. SiAaSul7SeSaAa94, Bangalore,
published in Government Gazette, notification.
ii). Issue a writ of mandamus directing the
respondents to fix the pay scale, grant the
petitioner the promotions as when they fell
due, provide and compute the increments, and
the DA, CCA, and other monitory benefits, and
pay the same to the petitioner after deducting
the wages already paid.
iii). Direct the respondents to consider the
eligibility of the petitioner for all such benefits,
including pension, GPF, leave and leave
encashment, etc., which he would be entitled
to, considering the entire period beyond the
initial 10 years of service as a daily wager to
having been spent as a regular employee
within a period 1 month from the date of the
order.
iv). Such further or other reliefs be granted to
the petitioner to which the petitioner would be
entitled to on the facts and circumstances of
the case.
2. It is the case of the petitioner that:
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(a). Originally he was appointed as Class IV
employee with the respondent No.3 in
terms of memo dated 05.04.1984, and said
appointment was on temporary basis. The
said appointment was approved by the
respondent No.2-Authority initially for a
period of one month and again by
subsequent memo dated 24.05.1984 and
thus he was allowed to continue the work
as Class IV employee with the respondent
No.3.
(b). That in the light of the judgment
passed by the Apex Court in the case of
Dhwarad, PWD Literate Daily Wages
Employees Association Vs State Of
Karnataka reported in (1990)2 SSC 396,
in which the daily wages employees
appointed on or before 01.07.1984, were
held to be entitled to be treated as monthly
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rates establishment employees at a fixed
pay of Rs.780 p.m. without any allowances
with effect from 01.01.1990. In the said
Order the Apex Court clarified not to
terminate any daily wages employee who
had been working in any Government
department as on 01.07.1984. That the
petitioner who was appointed as daily
wages employee prior 01.07.1984 was
entitled to be continued as a daily wages
employee without any break and was also
entitled to be absorbed as a work chart
employee and later regularized as a
Government employee in terms of the
aforesaid judgment of the Apex Court in the
case of the Dhwarad, PWD Literate Daily
Wages Employees Association Vs State
Of Karnataka. It is his further case that
ignoring the said direction of the Apex
Court the respondent No.3 in violation of
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the direction terminated the service of the
petitioner. The letter of termination dated
11.12.1990 was served on the petitioner on
15.12.1990. This constrained the petitioner
to approach this Court by filing a writ
petition in W.P.No. 26194-218/1990. This
Court by interim order dated 26.12.1990
saved the operation of the said order of
termination dated 11.12.1990. The
petitioner made representation along with
the copy of impugned order seeking to
join/report to the duties and the said Order
was duly served/received and
acknowledged by the respondent. When the
Government Order dated 20.10.1994 was
published on 03.11.1994 in terms of which
the petitioner being the person engaged on
the daily wages employee prior to
01.07.1984 was entitled to regularization
immediately on completion of 10 years of
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service. However, by communication dated
26.06.1996 the respondent directed the
petitioner to report to the duties as IV
Division Employee at the Karnataka Rajya
Khadi and Grama Udyog Board, Belagavi
and still continued to work in the said
office.
(c). The petitioner made three
representations on 14.11.2002, 02.12.2002
and 03.05.2005 seeking regularization of
his service. In the meanwhile, in view of
the judgment passed by the Apex Court in
the case of State Of Karnataka vs
Umadevi And Others, the cases as that of
the petitioner were required to be
processed providing regular employment
within six months from date of said
judgment. Despite the said direction and
the petitioner being fully entitled for
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regularization was not given benefit of the
said Order. That in the meanwhile,
Government of Karnataka promulgated a
legislation called Karnataka Daily Wages
Employees Welfare Act, 2012 which enables
the employees like petitioner to get benefit
of minimum basic pay for the post together
with dearness allowance, house rent
allowance and post retirement benefits.
Accordingly, the petitioner made an
application dated 09.12.2014 to consider
his name for the benefit of Karnataka Daily
Wages Employees Welfare Act.
(d). That in response thereof, respondent
No.3 by letter dated 11.03.2015 rejected
the request of the petitioner on the premise
that he had worked between 05.04.1984 to
11.12.1990 and from 01.08.1996 he was
reinstated after having been terminated on
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11.12.1990. As such between 01.08.1996
and 10.04.2006, the petitioner had not
completed the required minimum service
period of ten years; therefore petitioner
was not entitled to be included for the
benefit of Karnataka Daily Wages
Employees Welfare Act, 2012.
(e). Correspondingly, ensured between the
petitioner and respondent for
reconsideration of this matter, met with this
response that his request has already been
considered and declined leaving no room
for further consideration. This inaction on
the part of respondent-authority
constrained the petitioner to approach this
Court by way of present writ petition.
3. Learned counsel for the petitioner reiterating the
grounds urged in the memorandum of the petition submits
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that though the petitioner is entitled for regularization in
terms of the law laid down by the Apex Court in the case
of State Of Karnataka vs Umadevi And Others and
also in terms of the undertaking given by the State
Government before the Apex Court in the case of
Dhwarad, PWD Literate Daily Wages Employees
Association Vs State Of Karnataka. Thus, he submits
that in principle the petitioner is entitled for regularization
of his employment as he had completed the required
minimum tenure of ten years. Thus, he submits that the
petition be allowed granting reliefs as sought for.
4. In response, learned HCGP for the respondent
submits that the petitioner who is admittedly terminated
from his services effective from 11.12.1990 was
reappointed on 26.06.1996, as such he had not completed
the required minimum period of ten years for the purpose
of regularization in terms of the law down by the Apex
Court in the case of State Of Karnataka vs Umadevi
And Others. She submits that the impugned
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endorsement has specifically referred to the duration at
which the petitioner had rendered his service and same is
borne out of the record and he being the daily wages
employee was aware that his service could be withdrawn
at anytime and he not having objected for the same
cannot now contend that his services were to be
considered to be continuing one. Thus she submits that
the petitioner is not entitled for regularization as he has
not completed minimum period of ten years of tenure as
on 10.04.2006.
5. Heard the learned counsel for the parties and
perused the records.
6. There is no dispute with regard to the fact that the
petitioner was appointed as Class-IV employee in the
office of respondent No.3 on daily wage basis on
05.04.1984. There is also no dispute that he was
continued in the said service until he was terminated on
11.12.1990. The intervening factor as available in the
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petition requires to be looked at namely the proceedings
and the directions issued by the Apex Court in the case of
Dhwarad, PWD Literate Daily Wages Employees
Association Vs State Of Karnataka in which the Apex
Court has issued direction to the state authorities not to
terminate the daily wages employees who had been
working in any Government department as on 01.07.1984.
It is also necessary to note that Government of Karnataka
had even given not undertaking to terminate the services
of the daily wages employees and a draft scheme for
regularization of such employees was also submitted
before the Apex Court in the phase manner. Perhaps
sensing the outcome of the said Order and the
undertaking given by the State Government, the
respondent devised a ruse to terminate the employees as
that of the petitioner by issuing the communication dated
11.12.1990 as per Annexure-D. The petitioner and
similarly situated employees had challenged the said Order
of termination by filing a batch of writ petitions in W.P.No.
26194-218/1990. This Court by Order dated 26.12.1990
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had stayed the Orders of termination of service of the
petitioner and similarly situated employees to their
respective posts. In other words, the effect of interim
order is that the service of the petitioner and similarly
situated employees were continued. Interestingly the
respondent have taken shelter under their communication
dated 26.06.1996 as per Annexure-H by which it states
that the petitioner was appointed to the post as daily
wages employee and was sent to report to the District
Office, Belagavi. The respondents have heavily relied upon
this Order of appointment to reckon the period service of
the petitioner. This is obviously for the reason of
overcoming the cut-off date set out by the Apex Court in
the case of State Of Karnataka vs Umadevi And
Others as 10.04.2006 to contend that the petitioner has
not completed the term of ten years of service. As seen in
the impugned endorsement at Annexure-M the respondent
have contented that the petitioner initially served between
05.04.1984 to 11.12.1990 and from 01.08.1996 till date
he had served nine years, eight months and three days
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which is short of ten years as on the cut off date
10.04.2006.
7. The said stand of the respondent-authority cannot
be countenanced for two reasons. Firstly, there was a
specific direction by the Apex Court in the case of
Dhwarad, PWD Literate Daily Wages Employees
Association Vs State Of Karnataka in which the Apex
Court had directed the State Government not to terminate
the daily wages employees. Secondly, the State
Government had given undertaking before the Apex Court
to avoid such directions and had in fact prepared the draft
for regularization of such employees which culminated in
Government Order dated 06.08.1990 bearing No.DPAR 2
SLC 1990. As such the respondent-authority could not
have terminated the services of the petitioner on
11.10.1990 as ought to be done in the present case. Even
if the termination was given effect to, same was stayed by
this Court by interim order dated 26.12.1990, effect of the
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interim order is that order of termination was not given
effect to.
8. At this juncture, learned HCGP for the respondents
submits that the continuation of service with the help of
the interim order of a Court cannot be considered as
continuation of the service. The said submission cannot be
countenanced for two reasons. Firstly, the Order of
termination having been stayed by this Court Order dated
26.12.1990 cannot be considered to have been given
effect to. Secondly, the learned counsel for the petitioner
points out S.S. Siddapur who was similarly situated with
that of the petitioner and was also one of the petitioner in
the aforesaid writ petitions in W.P.No. 26194-218/1990,
whose termination was stayed, has been granted the
benefit of regularization as per the office Order dated
14.08.2001 subsequent to the filing of the aforesaid writ
petition.
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9. After considering the submission made by the
learned counsel for the petitioner that the respondent-
authority has considered the case of the person similarly
situated with that of the petitioner, there is no reason for
them to have discriminated the petitioner merely on the
ground of there being a break in his service. The said
contention on view of the respondent cannot be
countenanced.
10. Learned counsel for the petitioner submits that
the petitioner is in his last year of service having put in
continuous years of service and being entitled for
consideration of regularization has been subjected to
unwarranted litigation at the hands of respondent-
authority. That submission finds all force in view of facts
and law referred to herein above.
11. For the foregoing reasons, following:
ORDER
a) The petition is allowed.
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b) A writ of mandamus is issued
directing the respondents to consider
the initial date of appointment of the
petitioner namely 05.04.1984 as the
basis and to compute the period of
ten years for the purpose of
consideration for the purpose of
regularization of his service in the
post of Class IV Employee and to
provide service benefits to the
petitioner in terms of Government
Order dated 03.11.1994 as per
Annexure-G.
c) The respondent-authority shall also fix
the pay scale and grant such other
benefits as he would be entitled to his
services be regularized in terms of
Government Order dated 03.11.1994,
such exercise shall be done and be
completed within a period of twelve
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from the date of receipt of certified
copy of this Order.
Sd/-
JUDGE
RL
