[Cites 23, Cited by 0]
Karnataka High Court
M. Sakkubai W/O Baburao vs The State Of Karnataka on 15 December, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 104948 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 15TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 104948 OF 2025 (S-R)
BETWEEN:
M. SAKKUBAI W/O. BABURAO,
AGE. 66 YEARS,
OCC. RETIRED WORKER TEACHER,
R/O. 1ST WARD, HOSAPETE ROAD,
JOSHI STREET, HARAPANAHALLI,
TALUK. HARAPANAHALLI,
DIST. VIJAYANAGAR - 583 131.
...PETITIONER
(BY SRI. RAJA RAGHAVENRA NAIK, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF SCHOOL EDUCATION
AND LITERACY, 2ND GATE, 6TH FLOOR,
M.S. BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. THE COMMISSIONER OF
Digitally signed by PUBLIC INSTRUCTION,
VISHAL NINGAPPA
PATTIHAL DEPARTMENT OF SCHOOL EDUCATION,
Location: High NRUPATUNGA ROAD,
Court of Karnataka,
Dharwad Bench, BENGALURU - 560 001.
Dharwad
3. THE DIRECTOR OF VOCATIONAL EDUCATION
(COLLEGE), DEPARTMENT OF SCHOOL
EDUCATION (PRE-UNIVERSITY)
18TH CROSS, MALLESHWARAM,
BENGALURU - 560 012.
4. THE DEPUTY DIRECTOR
PUBLIC INSTRUCTION
(SCHOOL EDUCATION AND
LITERACY) CHITRADURGA,
DIST. CHITRADURGA - 577 501.
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5. THE BLOCK EDUCATION OFFICER,
HOLAKERE TALUK,
DIST. CHITRADURGA - 577 501.
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
FROM THE RESPONDENTS PERTAINING TO THE IMPUGNED ORDER.
B) ISSUE A WRIT IN THE NATURE TO DECLARING THAT SECTION 5(1)
OF THE KARNATAKA PART-TIME JOB ORIENTED COURSE EMPLOYEES
ABSORPTION ACT 2011 AS UNCONSTITUTIONAL AND
UNENFORCEABLE (ANNEXURE-B) VIDE BEARING NO. SAM VYA SHAA E
22 SHA SAN 2011, BANGALORE DTD 06-04-2011 AND CONSEQUENTLY
QUASH THE IMPUGNED CONDITION NO. 1 IN THE ABSORPTION
ORDER DATED. 20.09.2014 (ANNEXURE-C). BEARING NO. C8(6)/ SHA.
SHIA. VRU. SHI/VILIN. COUNSELING -02/2012-13 PASSED BY THE
RESPONDENT NO. 2. C) ISSUE A WRIT OR ORDER DIRECTING THE
RESPONDENTS TO RECKON THE SERVICE OF THE PETITIONER FROM
THE DATE OF INITIAL ENTRY TILL THE DATE OF REGULARIZATION
FOR THE PURPOSE OF FIXATION OF PAY, PENSIONARY BENEFITS AND
FURTHER DIRECT THEM TO PAY ALL CONSEQUENTIAL MONETARY
BENEFITS INCLUDING PENSION FORTHWITH AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
1. The petitioner is before this Court seeking the
following prayer:
"A. CALL for records from the Respondents pertaining to the
impugned order.
B. ISSUE A WRIT in the nature to declaring that section 5(1) of
the Karnataka Part-Time Job Oriented Course Employees
Absorption Act 2011 as unconstitutional and unenforceable
(Annexure-B) vide bearing no. Sam Vya Shaa E 22 Sha San 2011,
Bangalore dtd 06-04-2011 and CONSEQUENTLY QUASH the
impugned condition No. 1 in the Absorption order dated.
20.09.2014 (Annexure-C). bearing no. C8(6)/ Sha. Shia. Vru.
Shi/Vilin. Counseling -02/2012-13 passed by the Respondent
No.2.
C. ISSUE A WRIT OR ORDER directing the Respondents to reckon
the service of the Petitioner from the date of initial entry till the
date of regularization for the purpose of fixation of pay,
pensionary benefits and further direct them to pay all
consequential monetary benefits including pension forthwith.
D. PASS any other order as it deem fit as per facts and
circumstances of the case in the interest of justice and equity."
2. Learned counsel for the petitioner and learned
counsel for the respondents, in unison, submit that the issue
involved in the present lis stands answered by the order passed
by this Court in W.P.Nos.103754/2025 and connected matters,
disposed of on 16th October, 2025. The relevant portion reads as
follows:
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1. "Heard Sri.Raja Raghavendra Naik, learned counsel
for the petitioner and Smt.Kirthilata R. Patil, learned HCGP for
respondent-State.
2. The petitioners in all these cases are identical to those
who had earlier approached this Court in Writ Petition
No.105996/2016 and connected matters. This Court, while
considering the services rendered by persons possessing job-
oriented diploma qualifications and seeking absorption from a
retrospective date, i.e., the date of their initial appointment,
had negatived such a claim. However, the Court had directed
the State to consider their cases for grant of pension, taking
into account that the particular cadre was already dwindling in
number.
3. The present petitioners are similarly situated as those
in the earlier batch of petitions. Therefore, it is necessary for
the State to consider the cases of these petitioners as well, if
such consideration has already ensued pursuant to the order
passed by this Court on 20.12.2023. This Court, in the
aforesaid judgment, has held as follows:
" 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
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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 coordinate 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.
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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 Appointment The Retirement
No Appointment
1 Hemavati 01/08/1991 28/09/1991 31/10/2013
Murgod (Annexure- A) (Annexure- B) (Annexure-
E)
2 Vanita 01/07/1988 28/03/1993 29/02/2016
Kulkarni (Annexure- A) (Annexure- A1) (Annexure-
F)
3 Shridhar 05/10/1988 11/11/1988 28/02/2014
Gudi (Annexure- A) (Annexure- B) (Superannu
ation)"
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
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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
Ai 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
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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-
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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
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persons of aided institutions in the vacancies available in those
institutions.
Pay fixation, seniority and leave of part time Job
Oriented Course employee absorbed under these rules.-
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.
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.,
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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,
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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 pensionif 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.
2. The Apex Court in the case of INDU SHEKHAR
SINGH AND OTHERS v. STATE OF U.P. AND OTHERS1
has held as follows:
"23. The High Court evidently proceeded on the premise
that seniority is a fundamental right and thereby, in our
opinion, committed a manifest error.
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.
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
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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.
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.
... ... ...
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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 OTHERS has held as follows:
"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
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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)
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"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 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."
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)
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"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 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)
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"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
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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 ANOTHER 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,
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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
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, a consequence."
4. In view of the issue, nature of service, and
interpretation of the applicable rules being identical, the
present petitions stand disposed of on the same reasoning and
terms as those rendered in the aforesaid writ petitions.
5. Ordered accordingly."
3. The petitioner is one who was left out. Therefore, the
order so passed would cover the issue of the petitioner as well.
In that light, the present petition is disposed of on the same
reasoning as rendered in the aforesaid writ petition.
Sd/-
(M.NAGAPRASANNA)
JUDGE
AC/CT-ASC
List No.: 1 Sl No.: 137
