Karnataka High Court
Sri. H.R. Ningegowda vs State Of Karnataka on 28 February, 2024
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2024:KHC:8270-DB
WP No. 21101 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT PETITION NO. 21101 OF 2023 (S-KSAT)
BETWEEN:
SRI. H.R. NINGEGOWDA,
S/O LATE RAMEGOWDA,
AGED ABOUT 60 YEARS,
HOSTEL SUPERINTENDENT(RETD.)
GOVERNMENT GENERAL BOYS HOSTEL,
HADVANAHALLI,
HOLENARASIPURA TALUK,
HASSAN DISTRICT-573 211.
RESIDING AT HADAVANHALLI,
HASSAN DISTRICT-573 211.
Digitally signed by
K S RENUKAMBA ...PETITIONER
Location: HIGH (BY SRI. VIRUPAKSHAIAH P.H, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT,
SOCIAL WELFARE DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
2. THE COMMISSIONER,
SOCIAL WELFARE DEPARTMENT,
-2-
NC: 2024:KHC:8270-DB
WP No. 21101 of 2023
5TH FLOOR, M.S. BUIDLING,
DR. AMBEDKAR VEEDHI,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI. VIKAS ROJIPURA, AGA FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a)
ISSUE WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER
WRIT OR ORDER OR DIRECTION IN THE SIMILAR NATURE
QUASHING ENDORSEMENT BEARING No. SaKaNi/Sibbandi-
06/CR/2018-19 DATED 06.11.2020 VIDE ANNEXURE-A10 AND
ENDORSEMENT BEARING No. SaKaNi/KAT/CR-43/01-02 DATED
13.03.2008 VIDE ANNEXURE-A3 PASSED BY THE 2ND
RESPONDENT AUTHORITY HOLDING THE SAME ARE ILLEGAL
AND ARBITRARY AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, RAJESH RAI. K J., MADE THE
FOLLOWING:
ORDER
The petitioner, in this writ petition, has questioned the
legality and correctness of the order passed in A.No.2744/2021
dated 23.01.2023 by the Karnataka State Administrative
Tribunal at Bengaluru (for short 'the Tribunal') wherein, the
Tribunal dismissed the application filed by the petitioner.
2. The brief facts, which are necessary for disposal of
this writ petition, are as under:
The petitioner was appointed on daily wages as Hostel
Superintendent, Government General Boys Hostel,
NC: 2024:KHC:8270-DB
Hadavanahalli, Holenarasipura Taluk, Hassan District vide order
dated 07.11.1987 by the Chief Executive Officer, Zilla
Panchayath, Hassan District. Subsequently, for regularization
of his service, he approached the Tribunal in A.No.8017/2001
so also to fix the pay scale of the post as per the Government
Order with effect from the date on which he completed 10
years of service with all monetary benefits and for other reliefs.
Accordingly, the Tribunal disposed the said application with a
direction to regularize the services of the applicant for the post
of Hostel Superintendent, if he satisfies the requirements of law
laid down by the Hon'ble Apex Court in the case of Secretary,
State of Karnataka vs. Umadevi reported in 2006 (4) SCC
1 and in particular if he satisfies that, if he in continuance
service from 16.11.1987 till the order of Tribunal i.e.,
31.01.2007 without any break in service, and without aid or
intervention of an order of the Court or the Tribunal and his
appointment on 07.11.1987 was by a Competent Authority to
appoint to such post i.e., Hostel Superintendent, or to give
necessary/suitable endorsement to the applicant with the
reasons for not regularizing his services, within a period of
three months from the date of receipt of copy of the said order.
NC: 2024:KHC:8270-DB
It is the further case of the petitioner, in spite of such specific
observation and direction issued by the Tribunal, the second
respondent issued an endorsement dated 13.03.2008, holding
that petitioner is not eligible for regularization of service, since
has not complied with the condition No.4 in Para 44 of the
decision of Hon'ble Apex Court in the case of Umadevi.
However, the petitioner submitted a detailed representation
dated 19.03.2020 to the second respondent by inviting the
attention of the order passed in W.P.No.36491/2016 dated
23.07.2018 and also the order dated 09.07.2019 of the Hon'ble
Apex Court in the Special Leave Petition filed by the respondent
in the case of The State of Karnataka and Another vs.
Revanna S., which was dismissed by the Hon'ble Apex Court
by affirming the order passed by this Court. However, by
pedantic and mechanical approach, the second respondent
rejected the representation submitted by the petitioner vide
endorsement dated 06.11.2020. Hence, the petitioner
challenged the both the endorsements dated 06.11.2020 and
13.03.2008 passed by the second respondent and also to
regularize his service as Hostel Superintendent Group-'C' post
on completion of 10 years on daily wages basis and to regulate
NC: 2024:KHC:8270-DB
and re-fix the pay of the post and grant monetary benefits and
arrears before the Tribunal by filing A.No.2744/2021 as stated
supra. The Tribunal, after considering the materials placed by
the respective counsel, dismissed the application filed by the
petitioner. The said order is challenged in this writ petition.
3. We have heard the learned counsel Sri.
Virupakshaiah for petitioner so also the Additional Government
Advocate for respondents.
4. The learned counsel for the petitioner would
vehemently contend that the Tribunal has erred in passing the
impugned order by dismissing the application mechanically
without applying its mind on the facts and circumstances of the
case. According to the learned counsel, the endorsement
issued by second respondent/authority rejecting the claim of
petitioner for regularization of services soon after completion of
10 years of service is opposed to all canons of procedure and
law. The ratio contained in Umadevi's case supra is very
much applicable to the case on hand. The Government
extracted work from the petitioner for more than 3 decades, it
is the duty of the respondent to pass an order in consonance
NC: 2024:KHC:8270-DB
with the welfare and well being of its own employees. He also
submits that the principles of res-judicata or constructive
res-judicata are not applicable to the case on hand for the
reason that, the respondent-Government has continued the
service of the petitioner till his retirement on attending the age
of superannuation and that itself would show that, the service
of the petitioner was very much essential for administrative in
the respondent department.
5. In order to buttress his argument, he relied on the
judgments of Hon'ble Apex Court in the case of Rushibhai
jagdishchandra Pathak vs. Bhavnagar Municipal
Corporation in Civil Appeal No.4134/2022 dated
18.05.2022, M.R. Gupta vs. Union of India reported in
(1995) 5 SCC 628 and the judgments of this Court in the case
of Smt. Yallamma vs. State of Karnataka and Others in
W.P.2893/2022 (S-KSAT) dated 22.04.2022 and The Principal
Secretary and Others vs. Smt.Vijayamma in
W.A.No.4282/2012 dated 30.10.2019.
6. Per contra, learned AGA would contend that the
petitioner while approaching the Tribunal, filed an application
NC: 2024:KHC:8270-DB
for condonation of delay under Section 21(3) of Administrative
Tribunals Act to condone the delay of 12 Years 3 Months 10
Days in filing the application while challenging the endorsement
dated 13.03.2008. Though, he submitted a subsequent
representation and the respondent issued another endorsement
dated 06.11.2020, it is well established law that mere
submitting representation after representation, the law of
limitation shall not be saved by challenging the subsequent
endorsement dated 06.11.2020 by the petitioner and the same
will not accrue any cause of action to file the application before
the Tribunal. Hence, the Tribunal rightly dismissed the
application on the ground of delay and latches so also on
merits. Accordingly, he prays to dismiss the writ petition.
7. Having heard the learned counsel for the parties so
also perusal of the documents made available before us, the
only point that would arise for our consideration is that:
"Whether the order passed by the Tribunal in
A.No.2744/2021 is perverse and required to be
interfere at the hands of this Court?"
NC: 2024:KHC:8270-DB
8. On careful scrutiny of the documents, it could be
seen, the Tribunal while passing an order dated 31.01.2007 in
A.No.8017/2001, disposed the application with a direction to
regularize the service of the applicant for the post of Hostel
Superintendent, if he satisfy the requirements of law laid down
by the Hon'ble Apex Court in the case of Secretary, State of
Karnataka vs. Umadevi 2006 (4) SCC 1 and in particular, if
he satisfies that he was continuance in service from 16.11.1987
till the order of Tribunal i.e., 31.01.2007 without any break in
service, without aid or intervention of an order of the Court or
the Tribunal and his appointment on 07.11.1987 was by a
Competent Authority to appoint to such post i.e., Hostel
Superintendent, or to give necessary/suitable endorsement to
the applicant with the reasons for not regularizing his services.
Further on meticulous reading of endorsement dated
13.03.2008, the Government has elaborately discussed the
case of the applicant. The applicant was neither appointed
against the clear vacant post nor he was working continuously
for 10 years without any break as contemplated in the
judgment of Umadevi's case. The service of the applicant has
been continued only on the basis of the interim order passed by
NC: 2024:KHC:8270-DB
this Court in W.P.No.8192/1990 dated 11.04.1990, wherein this
Court directed not to terminate the service of daily rated/casual
employees who have put in continuous service of 240 days as
defined in Industrial Disputes Act. Thus, it is clear that the
service of the petitioner was continued based on the interim
order passed by this Court. Further his request for
regularization has been rejected including 734 other
employees. Though, the petitioner relied the order passed in
W.P.No.36491/2016 dated 23.07.2018, the petitioner was not a
party in the previous proceedings as such, the claim of the
petitioner on the ground of parity does not holds good. Thus,
the respondent-authority rightly rejected the endorsement
dated 13.03.2008 and 06.11.2020 as per the order passed by
the Tribunal in A.No.8017/2001. We find no irregularities in
the said order.
9. Nevertheless, as rightly contended by the learned
AGA, the Tribunal rejected the application of the petitioner not
only on merit but also on the ground of delay and latches on his
part, while challenging the endorsement dated 13.03.2008, i.e.,
after lapse of 12 Years 3 Months 10 Days. Though, learned
counsel for the petitioner contended that, the endorsement
- 10 -
NC: 2024:KHC:8270-DB
dated 13.03.2008 has merged with the subsequent
representation and the endorsement dated 16.11.2020, we find
no force in the said contention raised by the petitioner since
mere submitting representation after lapse of 12 years, itself
will not accrue any cause of action to file the application. The
Hon'ble Apex Court in the case of State Of Maharashtra vs.
Digambar reported in (1995) 4 SCC 683 in paragraph Nos.
12, 21 and 24 which reads as under:
"12. Again, as seen from the judgment, a portion
of which is excerpted by us earlier, the High
Court has not chosen to consider the ground of
laches or undue delay on the part of the writ
petitioners as that which disentitled them to seek
relief under Article 226 of the Constitution,
because of its view that the ground of laches or
undue delay cannot disentitle a citizen to obtain
relief from the High Court under Article 226 of
the Constitution when he claims compensation
from the State for his land alleged to have been
taken away by the State or its agencies.
21. Whether the above doctrine of laches which
disentitled grant of relief to a party by Equity
Court of England, could disentitle the grant of
relief to a person by the High Court in exercise of
its power under Article 226 of our Constitution,
when came up for consideration before a
Constitution Bench of this Court in The Moon
Mills Ltd. v. M.R. Meher, President,
Industrial Court, Bombay and Others [AIR 1967
SC 1450], it was regarded as a principle that
disentitled a party for grant of relief from a High
Court in exercise of its discretionary power
under Article 226 of the Constitution.
- 11 -
NC: 2024:KHC:8270-DB
24. Since we have held earlier that the person
seeking grant of relief under Article 226 of the
Constitution, even if it be against the State, is
required to satisfy the High Court that he was
not guilty of laches or undue delay in
approaching it for relief, need arises for us to
consider whether respondent in the present
appeal (writ petitioner in the High Court) who
had sought for relief of compensation on the
alleged infringement of his legal right, had
satisfied the High Court that he was not guilty of
undue delay or laches in approaching it for relief.
The allegation of the petitioner in the writ
petition, as becomes clear from the judgment
under appeal, was that although certain extent
of his land was taken away in the year 1971-72
by the agency of the State for the scarcity relief
road works undertaken by the State Government
in the year 1971-72, to find work for small
agriculturists and agricultural labourers in the
then prevailing severe drought conditions,
without his consent, he was not compensated
therefor, despite requests made to the State
Government and various agencies in that regard
eversince till the date of filing of the writ petition
by him."
10. The Hon'ble Apex Court in the case of
Chairman/Managing Director, Uttar Pradesh Power
Corporation Limited and Others vs. Ram Gopal reported in
(2021) 13 SCC 225, held unexplained delays and latches in
Paragraph Nos.11 to 13 which reads as under:
11. Whilst it is true that limitation does not
strictly apply to proceedings under Articles 32 or
226 of the Constitution, nevertheless, such rights
cannot be enforced after an unreasonable lapse
of time. Consideration of unexplained delays and
inordinate laches would always be relevant in
- 12 -
NC: 2024:KHC:8270-DB
writ actions, and the writ courts naturally ought
to be reluctant in exercising their discretionary
jurisdiction to protect those who have slept over
wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts
and cry for their rights at their convenience, and
vigilant citizens ought not to be treated alike
with mere opportunists. On multiple occasions, it
has been restated that there are implicit
limitations of time within which writ remedies
can be enforced. In S.S. Balu v. State of
Kerala [S.S. Balu v. State of Kerala, (2009) 2
SCC 479 : (2009) 1 SCC (L&S) 388] , this Court
observed thus : (SCC p. 485, para 17)
"17. It is also well-settled principle of law that
"delay defeats equity". ... It is now a trite law
that where the writ petitioner approaches the
High Court after a long delay, reliefs prayed for
may be denied to them on the ground of delay
and laches irrespective of the fact that they are
similarly situated to the other candidates who
obtain the benefit of the judgment."
12. Similarly, in Vijay Kumar Kaul v. Union of
India [Vijay Kumar Kaul v. Union of India, (2012)
7 SCC 610 : (2012) 2 SCC (L&S) 491] this Court
while considering the claim of candidates who,
despite being higher in merit, exercised their
right to parity much after those who were though
lower in merit but were diligently agitating their
rights, this Court observed that : (SCC pp. 617-
18, para 27)
"27. ... It becomes an obligation to take
into consideration the balance of justice
or injustice in entertaining the petition
or declining it on the ground of delay
and laches. It is a matter of great
significance that at one point of time
equity that existed in favour of one
melts into total insignificance and paves
the path of extinction with the passage
of time."
- 13 -
NC: 2024:KHC:8270-DB
13. We may hasten to add that these
principles may not, however, apply to
judgments which are delivered in rem. The
State and its instrumentalities are expected in
such category of cases to themselves, extend
the benefit of a judicial pronouncement to all
similarly placed employees without forcing each
person to individually knock the doors of courts.
This distinction between operation of delay and
laches to judgments delivered in rem and in
personam, is lucidly captured in State of
U.P. v. Arvind Kumar Srivastava [State of
U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC
347 : (2015) 1 SCC (L&S) 191] , laying down
that : (SCC pp. 363-64, para 22)
"22.1. The normal rule is that when a
particular set of employees is given
relief by the court, all other identically
situated persons need to be treated
alike by extending that benefit. Not
doing so would amount to
discrimination and would be violative
of Article 14 of the Constitution of
India. This principle needs to be
applied in service matters more
emphatically as the service
jurisprudence evolved by this Court
from time to time postulates that all
similarly situated persons should be
treated similarly. Therefore, the
normal rule would be that merely
because other similarly situated
persons did not approach the Court
earlier, they are not to be treated
differently.
22.2. However, this principle is
subject to well-recognised exceptions
in the form of laches and delays as
well as acquiescence. Those persons
who did not challenge the wrongful
action in their cases and acquiesced
into the same and woke up after long
delay only because of the reason that
- 14 -
NC: 2024:KHC:8270-DB
their counterparts who had
approached the court earlier in time
succeeded in their efforts, then such
employees cannot claim that the
benefit of the judgment rendered in
the case of similarly situated persons
be extended to them. They would be
treated as fence-sitters and laches
and delays, and/or the acquiescence,
would be a valid ground to dismiss
their claim.
22.3. However, this exception may
not apply in those cases where the
judgment pronounced by the court
was judgment in rem with intention to
give benefit to all similarly situated
persons, whether they approached the
court or not. With such a
pronouncement the obligation is cast
upon the authorities to itself extend
the benefit thereof to all similarly
situated persons. Such a situation can
occur when the subject-matter of the
decision touches upon the policy
matters, like scheme of regularisation
and the like (see K.C.
Sharma v. Union of India [K.C.
Sharma v. Union of India, (1997) 6
SCC 721 : 1998 SCC (L&S) 226] ). On
the other hand, if the judgment of the
court was in personam holding that
benefit of the said judgment shall
accrue to the parties before the court
and such an intention is stated
expressly in the judgment or it can be
impliedly found out from the tenor
and language of the judgment, those
who want to get the benefit of the
said judgment extended to them shall
have to satisfy that their petition does
not suffer from either laches and
delays or acquiescence."
- 15 -
NC: 2024:KHC:8270-DB
11. Hence, applying the above law laid down by the
Hon'ble Apex Court to the case on hand, we are of the
considered view that the Tribunal has rightly dismissed the
application filed by the petitioner on the ground of delay and
latches also. The judgments relied by the learned counsel for
the petitioner no way applies to the facts and circumstances of
this case. We find no infirmity in the order passed by the
Tribunal while rejecting the application filed by the petitioner.
Accordingly, we answer the point raised above in the negative
and we proceed to pass the following:
ORDER
The writ petition is dismissed being devoid of merits.
Sd/-
JUDGE
Sd/-
JUDGE
HKV
