Karnataka High Court
Shivaiah S/O Bhattacharya vs State Bank Of India on 14 September, 2023
Bench: N S Gowda
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WP No. 8236 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 8236 OF 2011 (S-RES)
BETWEEN:
1. SHIVAIAH,
S/O BHATTACHARYA
AGED ABOUT 56 YEARS,
PRESENTLY WORKING AS MESSENGER,
R.A.C.P.C STATE BANK OF INDIA,
ST.MARKS ROAD, BANGALORE-560001.
R/A C/O DEVI DARSHAN, NO.14,
4TH MAIN, 9TH CROSS,
CHAMRAJPET,
BANGALORE-560018.
SINCE DEAD BY HIS LRs.,
1(a) R.KALYANI,
W/O LATE SHIVAIAH,
AGED 56 YEARS,
Digitally R/AT No.26, C.T.BED ROAD,
signed by
PANKAJA S NEAR VIDYAPEETHA CIRCLE,
Location: BANGALORE-58
HIGH
COURT OF
KARNATAKA 1(b) S.PAVITHRA,
D/O LATE SHIVAIAH,
AGED ABOUT 29 YEARS,
R/AT No.26,
C.V.BED ROAD,
NEAR VIDYAPEETHA CIRCLE,
BANGALORE-58.
1(c) VIKRAM.S.,
S/O LATE SHIVAIAH,
AGED ABOUT 26 YEARS,
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WP No. 8236 of 2011
R/AT No.26, C.V.BED ROAD
NEAR VIDYAPEETHA CIRCLE,
BANGALORE-58.
1(d) SMT. PARVATHAMMA,
MOTHER OF THE 1ST PETITIONER,
AGED ABOUT 74 YEARS,
R/AT GALIGENAHALLI,
CHIKSARANG POST,
TUMKUR TALUK-572 118.
2. S MURALIDHARA,
S/O SIDDA SHETTY D
AGED ABOUT 41 YEARS,
PRESENTLY WORKING AS MESSENGER,
BELWADI INDUSTRIAL ESTATE BRANCH,
MYSORE-570018.
R/A H.NO.4795/2,
2ND CROSS, TANK ROAD, N.R.MOHALLA,
MYSORE-570 007.
3. P PRAKASH, S/O T B MADIWAL
AGED ABOUT 41 YEARS,
PRESENTLY WORKING AS MESSENGER
UDUPI TREASURY BRANCH, UDUPI,
R/A AKSHAYA, BALE KUDURU VILLAGE,
HANAGAR KATTE POST,
UDUPI TALUK,
UDUPI-576 218.
...PETITIONERS
(BY SRI. M NARAYANA BHAT., ADVOCATE FOR P-1(a) TO
P-1(d), P-2 & P-3)
AND:
1. STATE BANK OF INDIA
REPRESENTED BY
ITS CHAIRMAN
CENTRAL OFFICE:
MADAM CAMA ROAD,
BACKBAY RECLAMATION,
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WP No. 8236 of 2011
MUMBAI-400 021.
2. CHIEF GENERAL MANAGER
STATE BANK OF INDIA,
LOCAL HEAD OFFICENO.65,
ST.MARKS ROAD,
BANGALORE-560001.
3. DEPUTY GENERAL MANAGER
CIRCLE DEVELOPMENT OFFICER,
STATE BANK OF INDIA
NO.65, ST.MARKS ROAD,
BANGALORE-560001
...RESPONDENTS
(BY SRI. C.K.SUBRAMANYA, ADVOCATE FOR R-1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
ENTIRE RECORDS PERTAINING TO THE ABOVE CASE AND
DIRECT THE RESPONDENTS TO CONSIDER THE
REPRESENTATIONS OF THE PETITIONERS MARKED AT
ANNEXURE-T, DATED 30.10.2010 IN THE LIGHT OF JUDGMENT
PASSED IN UMA DEVI'S CASE REPORTED IN 2006 (4) SCC
PAGE-1 AND 2010 (VOL.II) SCC (L&S) 826 IN THE CASE OF
STATE OF KARNATAKA Vs. M.L. KESARI AND EXTEND THEM
THE BENEFIT THAT HAS BEEN EXTENDED BY THE BANK TO MR.
H.A. MANJUNATH AND GRANT THEM ALL THE CONSEQUENTIAL
BENEFITS CONSEQUENT UPON ABSORBING THEIR SERVICES,
ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 8236 of 2011
ORDER
1. The writ petition was initially filed by the three
petitioners seeking a direction to be issued to the 1st
respondent--Bank to consider the representations made
by them vide Annexure 'T' in light of the judgments
rendered by the Hon'ble Apex Court in the case of Uma
Devi1 and M.L.Kesari2 case.
2. Subsequently, by way of an amendment, the
petitioners were also permitted to challenge an
endorsement dated 09.03.2011 which was marked as
Annexure 'W', by which the claim of the petitioners
seeking regularization was rejected.
3. Initially, the petitioners had preferred Writ Petition
Nos.3247-49 of 2009 seeking a direction to the Bank to
consider their representations and extend to them the
benefit of regularization, as had been done in case of
another employee. By an order dated 02.11.2009, writ
The State of Karnataka vs. Uma devi (2006) 4 SCC
The State of Karnataka vs. M.L.Kesari - 2010 (Vol.II) SCC (L&S) 826
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WP No. 8236 of 2011
petitions were not entertained by this Court, but this Court
stated that it would be open for the Bank to consider the
representations that had been submitted by the petitioners
and pass orders thereon in accordance with law.
4. As against this order, a Writ Appeal in W.A. Nos.4050
of 2009 and 1476-77 of 2010 was filed by the petitioner.
A Division Bench of this Court, by an order dated
21.04.2010, proceeded to dispose of the writ appeals
holding that a direction to regularize the petitioners could
not be issued, but the Court could direct the Bank to
consider the representations for regularization and other
reliefs sought by the petitioners. Accordingly, the Division
Bench noticed that the learned Single Judge had directed
the Bank to consider the representations submitted by the
petitioners and held that the same would suffice, while
confirming the order passed by the learned Single Judge.
5. Pursuant to the said order of the Division Bench,
since the representations remained unconsidered, the
present writ petition in W.P.No.8236 of 2011 was filed and
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a Co-ordinate Bench of this Court by order dated
02.03.2012 dismissed the writ petition holding that the
petitioners were required to work out their remedy before
the appropriate forum by raising a dispute.
6. Being aggrieved by this order, a writ appeal was filed
in W.A. Nos.1403-05 of 2012. A Division Bench of this
court, taking note of a similar order passed in W.A.
No.4326 of 1999, which pertained to H.A.Manjunath,
proceeded to set aside the order passed in this writ
petition and remanded the matter for consideration of the
writ petition on merits.
7. Accordingly, the present writ petition is taken up for
consideration on merits.
8. The undisputed facts of the case are that the
petitioners herein were all appointed by the Bank and in
respect of their employment, identical orders in
(Annexures 'C', 'E' and 'L') were passed on 17.05.1994 on
their completion of 240 days of service and on the request
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made by them to appoint them. The terms of their
appointment would be relevant and hence, they are
reproduced as under:
"STAFF: SUBORDINATE
TEMPORARY SERVICES.
With reference to your application for an
appointment in the Bank on the grounds of
having completed 240 days of temporary service
in a block of 12 calendar months, it has been
decided to continuously engage you purely on
temporary basis till you are interviewed along
with the other candidates belonging to similar
category. Your permanent absorption in the Bank
is subject to your being found suitable in the
interviews to be held for this purpose.
Accordingly, please report to our Kolar branch
immediately. Your engagement at Kolar branch is
on supernumerary basis.
2. This letter does not constitute any offer of
appointment in the Bank."
9. As could be seen from this order, the petitioners had
been appointed as Subordinate Temporary Staff, after
they had completed 240 days in a block period of twelve
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calendar months and on that ground, they sought for
appointment in the Bank. The Bank, having taken into
consideration that the petitioners had completed 240 days
of service in a block period of twelve months, decided to
continuously engage the petitioners, albeit on
temporary basis. The Bank has gone on to state in its
letter that they would be engaged purely on temporary
basis till they were interviewed along with other
candidates belonging to a similar category.
10. The Bank has, in fact, gone further and has
categorically stated that the permanent absorption of the
petitioners in the Bank would be subject to them being
found suitable in the interview to be held for this purpose.
11. A reading of this order basically indicates that this
was not a case of an appointment on daily-wage basis or
for a limited tenure. The fact that the Bank used the term
"continuously engage them but purely on temporary
basis", would indicate that this was not an appointment
limited by time. The fact that the Bank qualified this
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statement by also stating that this engagement on
temporary basis would continue till they were interviewed
along with other candidates, also indicates that it was not
an ad hoc appointment.
12. The last statement of the Bank that the permanent
absorption of the petitioners in the Bank would be subject
to them being found suitable in the interview would clearly
indicate that the Bank had held out a clear promise to the
petitioners that they would be permanently absorbed if
they were found fit and suitable in the interview. It is,
therefore, clear that the appointment of the petitioners
was definitely not for a temporary or an ad hoc period and
they were appointed against a regular vacancy.
13. This is a because, the Bank has used the terms
"continuously engage" in the orders of appointment
which indicates that there was a definite need of this
particular post, which the Bank had stated would be filled
up by the petitioners and that they would also be absorbed
if found suitable. From this, it could also be gathered that
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the requirement of these posts was permanent and was, in
fact, also sanctioned.
14. It is also not in dispute that the petitioners have
been working continuously from 1994 in the Bank. The
Bank has filed a memo on 24.08.2023 in which it has
stated that the petitioners had also been given the regular
scales of pay like that of a similarly situated staff and that
they have also been drawing the same pay as the other
employees.
15. The fact that the Bank has chosen to extend the
regular pay-scales to the petitioners would also indicate
that the petitioners were all along treated as regular
employees and they were never treated as ad hoc
employees.
16. In my view, having regard to the fact that the
petitioners have worked for the past 29 years and their
appointments were considered to be regular along with a
clear promise that they would be absorbed, it cannot be
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held that the petitioners were temporary appointees and
could not, therefore, seek a declaration that they are
regular employees.
17. The learned counsel for the Bank, however,
strenuously contended that in light of the judgment of the
Constitution Bench of the Hon'ble Supreme Court in Uma
Devi's case (supra) where it was observed that
irrespective of the length of service of the petitioners, their
services cannot be regularized since that would amount to
back-door entry and this would be against the
Constitutional scheme.
18. It has to be kept in mind that in Uma Devi's case
and in other cases, the Hon'ble Supreme Court was
considering the case of persons who were appointed on
daily-wage basis, which were, obviously, appointments
purely on ad hoc basis made de hors the Rules.
19. However, in the present case, it is clear that the
Bank appointed the petitioners after they had completed
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240 days in 12 calendar months. The Bank went on to
clearly state that they would be continuously engaged and
would also be absorbed permanently subject to them
being found fit and suitable in the interview to be held.
20. It is, therefore, clear that an appointment of this
nature would have a sense of permanency about it and
cannot be considered as a temporary employment, even
though the words "temporary basis" have been used in the
order of appointment.
21. Since a clear statement is made in the appointment
letters that the petitioners would be permanently absorbed
subject to them being found suitable coupled with the fact
that petitioners were extended the regular pay-scales and
have been in service for nearly 29 years, it will have to be
held that the petitioners were all along considered as
regular employees, and as a consequence, the petitioners
would be entitled to all the benefits of a regular employee.
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22. Accordingly, the submissions made by the learned
counsel for the Bank cannot be accepted and the same
are, accordingly, rejected.
23. In the result, the writ petition is disposed of holding
that the Bank itself has treated the petitioners as regular
Bank employees, as a consequence of which, the
petitioners would be entitled for all the benefits of regular
employees including the retiral benefits in the same
manner as that of regular employees.
24. It is also stated that petitioner No.1 is no more and
his legal representatives are already on record. In this
view of the matter, the legal representatives of petitioner
No.1 shall be given all the retrial benefits that petitioner
No.1 would be entitled to, on the premise that he was a
regular employee.
25. The said benefits shall be given within a period of
three months from the date of receipt of a copy of this
order.
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26. In light of these observations, the impugned order
rejecting the requests of the petitioners for regularization
would stand quashed.
27. It is also made clear that this order has been passed
having regard to the peculiar facts and circumstances of
the present case, especially the fact that the Bank had
stated, in its appointment orders, that the petitioners
would be permanently absorbed at a later date.
Sd/-
JUDGE
RK
Ct:SN
