Sri.H.S.Raghavendra vs The State Of Karnataka
2023 Latest Caselaw 3074 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 09TH DAY OF JUNE, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE E.S. INDIRESH

        WRIT PETITION NO.24055 OF 2014 (S-PRO)

BETWEEN:
SRI. H.S. RAGHAVENDRA,
S/O H.K. SUBHASCHANDRA BHOSE,
AGED ABOUT 57 YEARS,
R/AT NO.188, ALASINGARA BEEDI,
NEAR CHICKPET, TUMKUR CITY,
TUMKUR - 572 101.

                                                ...PETITIONER
(BY SRI. M.R. RAJAGOPAL, SENIOR COUNSEL FOR
SRI. H.N.BASAVARAJU, ADVOCATE)
AND:

1.   THE STATE OF KARNATAKA
     BY ITS SECRETARY,
     DEPARTMENT OF HOUSING AND
     URBAN DEVELOPMENT,
     VIKASA SOUDHA,
     BENGALURU-560 001.

2.   THE COMMISSIONER
     TUMKUR URBAN DEVELOPMENT
     AUTHORITY, BELAGUMBA ROAD,
     TUMKUR CITY,
     TUMKUR.

                                              ....RESPONDENTS
(BY SRI. M.S. NAGARAJA, AGA FOR R1;
SRI. T.P. VIVEKANANDA, ADVOCATE FOR R2)
                                      2




       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO           QUASH THE
IMPUGNED ENDORSEMENT OF THE 2ND RESPONDENT DATED
29.04.2014 AS PER ANNEXURE-V AND ALSO THE COMMUNICATION OF
THE 1ST RESPONDENT DATED 09.07.2013 AS PER ANNEXURE-V1 AND
ETC. .

     IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
                              ORDER

In this writ petition, the petitioner is challenging

Endorsement dated 29.04.2014 (Annexure-V) and

communication dated 09.07.2013, (Annexure- V1) issued by the

respondents herein.

2. It is the case of the petitioner that, the petitioner

was appointed temporarily on daily wage basis as a Typist with

the then City Improvement Trust Board, Tumakuru as per letter

dated 28.02.1986 (Annexure-A). It is the case of the petitioner

that, the petitioner has approached the respondent-authorities

for regularisation of his service, on the ground that the petitioner

has been working against the Sanctioned Post. Therefore, it is

the contention of the petitioner that, the petitioner fulfills the

conditions stipulated in the case of Secretary, State of

Karnataka V. Umadevi and Ors reported in (2006) 4 SCC 1

and accordingly, sough for quashing of impugned orders.

3. I have heard M.R.Rajgopal, learned Senior Counsel

appearing on behalf of Sri H.N.Basavaraju for the petitioner, Sri

M.S.Nagaraja, learned Additional Government Advocate

appearing for the respondent-State and Sri T.P.Vivekananda,

learned counsel appearing for the respondent No.2.

4. Sri M.R.Rajgopal, learned Senior Counsel for the

petitioner invited the attention of the Court to Government order

dated 03.04.1986, wherein, sanction of time scale of pay to the

employees working on daily wages in the local bodies have been

considered and the pay and allowances in respect of the regular

employees has been extended to the employees of the local

body. He further invited the attention of the court to the fact

that the petitioner was working with the 2nd respondent since

1986 and the petitioner, though appointed on daily wages, has

been granted wages as per Annexure-H, and the case of the

petitioner has been considered as per letter dated 25.05.1995

(Annexure-M) as there was need for such appointment by the

2nd respondent. Sri M.R.Rajgopal, learned Senior Counsel further

contended that, as per Official Memorandum dated 09.01.2003

by the respondent No.2, (Annexure-P), case of the petitioner has

been considered for promotion/absorption and therefore, he

contended that the impugned orders passed by the respondent-

authorities requires to be set aside. To buttress in his

contentions, learned Senior Counsel places reliance on the

judgment of this court in the case of Amarkant Rai Vs. State

of Bihar and others reported in (2015) 8 SCC 265 and in the

case of Nihal Singh and others vs. State of Punjab and

others reported in (2013) 14 SCC 65.

5. Per contra, Sri M.S.Nagaraj, learned Additional

Government Advocate appearing for the respondent-State

submitted that as the petitioner has not complied with the

conditions stipulated by the Hon'ble Apex Court in the case of

Umadevi (supra) and further the petitioner has attained age of

superannuation and therefore, considering the case of the

petitioner for regularisation does not arise.

7. Sri T.P.Vivekananda, learned counsel appearing for

the 2nd respondent, argued that, the petitioner has not been

appointed as against the sanctioned post, and the appointment

is only a temporary in nature by the then City Improvement

Trust Board. He invited the attention of the Court to Section 51

and 52 of the Karnataka Urban Development Authorities Act,

1987 (for short, hereinafter referred as Act) and submitted that

unless the Regulation under Section 72(1) (f) of the Act, is

framed by the Government, all appointments to the authorities

under the Act, shall be made by the State Government alone and

2nd respondent is not the competent authority to appoint any

such person unless, same is accorded and thereafter, approved

by the State Government. Accordingly, Sri T.P.Vivekananda,

learned counsel argued that, as the cadre and Recruitment Rules

of the 2nd respondent has not been approved by the

Government, the petitioner is entitled for the benefits under the

provisions of Daily Wage Employees Welfare Act, 2012. He

further submitted that the petitioner has retired from service on

31.12.2006 and accordingly, he sought for dismissal of the writ

petition.

8. In the light of the submission made by the learned

counsel appearing for the parties, the core question to be

answered in this writ petition is, whether the appointment of the

petitioner to the post of Typist is as against the sanctioned post

or not. In this regard, on careful consideration of the writ

papers would indicate that, petitioner has been appointed to the

post of Typist on temporary basis and appointment of the

petitioner was accepted by the 2nd respondent as per Annexure-

C. The service of the petitioner has been considered for revision

of pay by the respondent-authorities as per order dated

25.05.1995, (Annexure-M), and further 2nd respondent has

extended the benefits to the petitioner. It is the case of the

learned Senior counsel appearing for the petitioner that the 2nd

respondent was in need of the service of the petitioner and

accordingly, the service was extended for a considerable period

and therefore, as the petitioner has been appointed as against

the sanctioned post, the petitioner is entitled for regularisation.

In this regard, I have carefully examined the four conditions to

be fulfilled by the applicants seeking for regularisation in terms

of paragraph 53 of the Umadevi's case (supra). In the backdrop

of the law declared by the Constitution Bench in the case of

Umadevi, I have carefully examined the judgment referred to

by the petitioner in Amarkant Rai (supra). Perusal of paragraph

13 of the above judgment makes it clear that, the appellant in

the said case was working against the unsanctioned post and

thereafter, by order dated 03.01.2002, appointed the appellant

against the sanctioned post. However, in the present case, the

petitioner was not appointed as against the sanctioned post and

that apart, in the event if the petitioner to be appointed as

against the sanctioned post, the Government is the competent

appointing Authority as per Section 51 and 52 of the Act, and

therefore, the aforementioned judgment and facts are not

applicable to the case on hand. The,refore I do not find any

acceptable ground to interfere with the impugned orders passed

by the respondent-authorities. In this regard, this Court, in the

case of B.K. ANNAPPA vs. THE URBAN DEVELOPMENT

AUTHORITY, HASSAN AND OTHERS reported in ILR 1999

KAR 1147, had an occasion to deal with Section 52 of the Act.

Paragraph 22 to 25 reads as under:

"22. From the above provisions, it is clear that the Authority cannot undertake any development scheme without seeking the previous approval of the Government. From the said provision, it also manifests that the Government's approval is required also for incurring the expenditure for execution of said development scheme which will also include the expenditure against employment of manpower by way of daily wages or contract basis restricting its tenure till completion, of the scheme. Therefore, the Commissioner is wrong in assuming that he or the Authority can make temporary or daily wages appointments under the guise of undertaking developmental schemes.

23. Keeping in view the facts as noticed above that the none of the Authorities constituted under the Act, being 22 in number, have statutory service regulations in terms of Section 72 of the Act, I feel that it is hightime when the Government should be set down with judicial fiat to expedite the grant of approval to the Regulations which have already been sent to it atleast by 16 Authorities. So far as the remaining 6 Authorities are concerned, the Government should issue immediate directions to them in terms of Section 65 of the Act for forwarding its draft regulations for its approval.

24. In so far as the reliefs claimed by the petitioners' are concerned, the same cannot be granted in view of the law laid down by the Supreme Court in the case State of Himachal Pradesh v. Suresh Kumar Verma, wherein it has been held that.

"The vacancies require to be filled up in accordance with the rules and all the candidates who would otherwise be eligible are entitled to apply for when recruitment is made and seek consideration of their claims on merit according to the Rules for direct recruitment along with all the eligible candidates. The appointment on daily wages cannot be a conduit pipe for regular appointments which would be a back-door entry, detrimental to the efficiency of service and would breed seeds of nepotism and

corruption. It is equally settled law that even for Class IV employees recruitment according to rules is a pre-condition."

25. Keeping in mind the facts, the statutory provisions and the law laid down by the Supreme Court as noticed above, it is held that the petitioner is not entitled to any relief as claimed. But at the same time, it is further held and directed that.-

(i) No Urban Development Authority constituted under the Act or its Commissioner or any other office bearer is entitled to give appointments either on daily or contract or temporary or permanent basis to any person as officer or servant of the Authority except under and in accordance with Sections 51 and 52 of the Act:

(ii) the State Government should complete the process of granting approval and its publication in the official gazette of the regulations in terms of Section 72 of the Act in respect of every Urban Development Authority within Four months from today.

9. Following the law declared by this Court and applying

to the principle to the case on hand, as the 2nd respondent is

incompetent authority for making any appointment and

undisputedly the petitioner has not been appointed as against

the sanctioned post, I am of the view that, the writ petition is

liable to be rejected. In the result, writ petition is dismissed.

SD/-

JUDGE SB