Karnataka High Court

Smt Nirmala Hiremath D/O. Late Sadashiv ... vs The State Of Karnataka on 20 February, 2025

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

Reserved on : 07.02.2025
Pronounced on : 20.02.2025

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 20Th DAY OF FEBRUARY, 2025
R
BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.101459 OF 2023 (S-RES)

BETWEEN:

SMT. NIRMALA HIREMATH
D/O LATE SADASHIV HIREMATH
W/O G.K.PATIL
AGED ABOUT 49 YEARS
R/O MOODAKERI, POST. HEGDE
TALUK: KUMTA
DISTRICT: UTTARA KANNADA - 581 332.
... PETITIONER

(BY SRI J.S.SHETTY, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA
BY ITS SECRETARY
EDUCATION DEPARTMENT
Digitally signed by
VISHAL NINGAPPA
(COLLEGIATE EDUCATION)
PATTIHAL
Location: High
M.S.BUILDING, BENGALURU - 560 001.
Court of Karnataka,
Dharwad Bench,
Dharwad

2. COMMISSIONER
DEPARTMENT OF COLLEGIATE EDUCATION
BENGALURU - 560 001.
2

3. REGIONAL JOINT DIRECTOR
DEPARTMENT OF COLLEGIATE EDUCATION
MINI-VIDHANA SOUDA
DHARWAD - 580 001.

4. CANARA COLLEGE SOCIETY REGISTERED
KUMTA - 581 362
DISTRICT: UTTARA KANNADA - 581 301.
BY ITS SECRETARY.

5. DR. A.V.BALIGA COLLEGE OF
ARTS AND SCIENCE
KUMTA - 581 362
DISTRICT: UTTARA KANNADA - 581 301.
REPRESENTED BY ITS PRINCIPAL
... RESPONDENTS

(BY SRI KIRTILATA R.PATIL, HCGP FOR R1 TO R3;
SRI VENKATESH M.KHARVI, ADVOCATE FOR R4;
R5 - SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI TO QUASH THE NOTIFICATION DATED 8/2/2023
ISSUED BY THE 4TH RESPONDENT SOCIETY, THE COPY OF WHICH
HAS BEEN PRODUCED HEREWITH AND MARKED AS ANNEXURE-A
IN SO FAR IT RELATES POST OF LIBRARIAN IS CONCERNED.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 07.02.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner is before this Court calling in question a

notification dated 08.02.2023, issued by the fourth respondent -

Kanara College Society (for short 'Society') calling for applications

from eligible persons to various posts including that of Librarian,

which concerns the present petition.

2. Heard Sri J.S.Shetty, learned counsel for the petitioner,

Smt. Kirtilata R. Patil, learned High Court Government Pleader for

respondent Nos.1 to 3 and Sri Venkatesh M. Kharvi, learned counsel

for respondent No.4. Respondent No.5, though served, is

unrepresented.

3. Facts in brief, germane, are as follows:

The petitioner at the relevant point in time had possessed

Master Degree in Library and Information Science. Owing to her

qualification, the fourth respondent appointed the petitioner as a

Librarian in the fifth respondent - College run by the fourth

respondent, on 19.07.2004. The petitioner then acquires degrees

of M.Phil and Ph.d during her service and now holds M.Lib., M.Phil.
4

and Ph.D. The petitioner has been in continuous employment from

19.07.2004. In the year 2010, the fourth respondent - Society

communicates to the State bringing it to the notice of the State that

the petitioner has been working as a Librarian in the fifth

respondent aided Institution, since then, for over six years and

recommends that her case could be considered for regularization

against the sanctioned vacant post. The State does not pass any

order and the time passes by. A notification for direct recruitment

for various posts in the fourth respondent's College is issued, which

includes a post for Librarian. Issuance of the recruitment

notification dated on 08.02.2023, has driven the petitioner to this

Court in the subject petition.

4. This Court had passed several orders protecting the

interest of the petitioner and the matter is heard.

5. Learned counsel appearing for the petitioner submits that

the petitioner is appointed against a sanctioned vacant post. She is

fully qualified to hold the post as a Librarian and has been in

uninterrupted continuous service since 2004 to this day and

therefore, she has put in 21 years of service as a Librarian. The
5

State directs the Society to issue a recruitment notification on the

score that the post of Librarian can be filled up only by direct

recruitment. Therefore, the notification is issued. Learned counsel

would further submit that the petitioner now cannot participate in

the said selection process as she is close to 50 years and the cut off

age is 40 years in terms of the notification dated 08.02.2023 and

would submit that she will be left high and dry if recruitment

process is permitted.

6. Per contra, learned High Court Government Pleader would

refute the submissions to contend that the regularization in the

service cannot be sought as a matter of right; even if the petitioner

is working against a sanctioned vacant post, she is working in a

post, which has to be filled up only by direct recruitment.

Therefore, he would submit that there is no merit in the petition

and the petition should be dismissed.

7. I have given my anxious consideration to the submissions

made by the learned counsel for the respective parties and have

perused the material on record.
6

8. The dates and link in the chain of events, require

reiteration. The petitioner qualified with B.Com, M.Lib and M.Phil,

was chosen to be appointed as a Librarian in the fifth respondent -

Institution, run by the fourth respondent - Society. The order of

appointment reads as follows:

"17-July-2004

MEMO

Sub: Appointment as Librarian on temporary basis
in our aided college.

Smt. Nirmala S. Hiremath is appointed as Librarian with
effect from 19-07-2004 on temporary basis in our aided
college in the clear vacancy caused by retirement till
regular appointment is done as per rule.

To,
Nirmala S. Hiremath
C/O. G.K.Bhat Soori
Post: Hegde
Taluk: Kumta.

Sd/-
KANARA COLLEGE SOCIETY (REGD.)
KUMTA (N.K.) 581-343"

(Emphasis added)

The order of appointment clearly indicates that she is

appointed on temporary basis, in a clear vacancy, caused by

retirement, till the regular appointment is done as per the rule.
7

What is discernable is, that the petitioner was appointed against a

sanctioned vacant post caused by the retirement of the incumbent.

9. Six years passed by, the Society communicates to the third

respondent seeking regularization of the services of the petitioner

as special case owing to the aforesaid circumstance, on the score

that the petitioner is qualified, working against a sanctioned vacant

post and by then, completed six years. The communication dated

22.11.2010, reads as follows

" ಾನ ೇ ಶಕರು, 22-11-2010
ಾdå ಣ ಮತು ತರ ೇ ಇ ಾ ೆ,
ನಂ 4. 100 ಅ ವತು ಲ ರ ೆ
!ೊಸ$ೆ ೆ ಹ&' ಬನಶಂಕ) 3*ೇ ಹಂತ,
¨ÉAUÀ¼ÀÆgÀÄ-560 065.

¸Àgï,
,ಷಯ:- /ಾ/ಾ01ಕ *ೆ ೆಯ12 ಗ4ಂಥ6ಾಲಕ ಾ7 $ೆಲಸ ಾಡು ರುವ ಅಹ
ಅಭ : ಯನ; SÁAiÀÄAUÉÆ½¸À®Ä C£ÀÄªÀÄw ¤ÃqÀÄªÀ PÀÄjvÀÄ.

ಈ =ೕ1ನ ,ಷಯ$ೆ0 ಸಂಬಂಧಪಟAಂ/ೆ ದCಾಳEಗFಾದ ತಮG ಗಮನ$ೆ0 ಈ $ೆಳ7ನ
ವಸುHI ಯ*ಾ; ತರು ೆJೕ*ೆ.

1. ನಮG ಆಡ&ತ$ೊ0ಳಪಟA ಕಮ ಾ ¨Á½Lಾ ಣ ಮ!ಾ , ಾ ಲಯ ಕುಮMಾದ12
ಗ4ಂಥ6ಾಲಕ ಾ7 $ೆಲಸ ಾಡು ದJ 4ೕಮ ಲNO ಭಟA M.Lib ಇವಳE 30-11-2004
P*ಾಂಕದಂದು ವೃತ ಾ7 ಾJ ೆ.

2. ಈ ಮ!ಾ , ಾ ಲಯವR ಾಜ ಸರ$ಾರದ ಅನು ಾನ ಸಂT/ೆLೆ ಒಳಪVAದುJ ಅಲ2 ೇ
ಗ4ಂಥ6ಾಲಕ ಈ ಮ!ಾ, ಾ ಲಯ$ೆ0 ಒಂ ೇ ಹು ೆJCಾ7 ೆ.
8

3. , ಾ : ಗಳ TತದೃWAXಂದ ಆಡ&ತ ಮಂಡ&ಯು 4ೕಮ ಮ ಾ ಸ. Tೕ ೇಮಠ M.Lib.
M.Phill ಇವರನು; /ಾ/ಾ01ಕ *ೆ ೆಯ12 ಗ4ಂಥ6ಾಲಕ ಾ7 $ೆಲಸ ಾಡಲು P*ಾಂಕ 19-07-
2004 jAzÀ ¤AiÀÄ«Ä¹PÉÆArzÉ.

4. 4ೕಮ ಮ ಾ ಸ ಾ ವ T ೇಮಠ ಇವರು ಗ4ಂಥ6ಾಲಕ ಹು ೆJLೆ ಸಂಪZಣ [ೈ ]ಕ
ಅಹ /ೆ !ೊಂPದುJ 6 ವಷ ಗ&ಂದ ಆಡ&ತ ಮಂಡ&ಯ ಸಂ ೆIಗಳ12 ಸಮಥ ^ಾ7 $ಾಯ
ವ Tಸು ಾJ ೆ.

ಈ =ೕ1ನ ಅಂಶಗಳನು; ಗಮ H ಇವರನ; ಾನ,ೕಯ *ೆ ೆಯ12 !ಾಗೂ , ಾ : ಗಳ
TತದೃWAXಂದ ಾಯಂ ಗ4ಂಥ6ಾಲಕ ಾ7 *ೇ_ಸಲು («[ೇಷ ಸಂದಭ ಎಂದು ಪ)ಗ]H)
ಅನುಮ ೕಡ ೇ$ೆಂದು ತಮG12 ,ನಂ H$ೊಳE'/ೇ*ೆ.

ವಂದ*ೆಗFೆa ಂPLೆ,

ಇಂ ,[ಾbH

ಅಡಕ: 4ೕಮ ಮ ಾ ಸ, T ೇಮಠ
ಇವ)ಂದ ಬಂದ ಅc !ಾಗೂ
, ಾ ಹ /ೆ ಪ4 ಾಣ ಪತ4."

Sd/-
KANARA COLLEGE SOCIETY (REGD.)
KUMTA (N.K.) 581-343"

(Emphasis added)

The State does not reply to the said communication. By another

communication, the petitioner is transferred to another Institution

run by the same Society, which is also communicated to the State.

This happens on 28.07.2016.

10. At a later point in time, the State Government appears to

have communicated to the Society to fill up all vacant posts. Then
9

comes the notification dated 08.02.2023, impugned in the subject

petition, which includes a post of the Librarian. The age limit in the

notification is as follows:

"Age Limit: Maximum 40 years for GM, 43 years
for OBC and 45 years for SC/ST/CAT-1 candidates on
the last day of submission of application."

(Emphasis added)

In terms of the afore-quoted age limit of the applications, the

maximum age limit is, 40 years to a general merit, 43 years to an

other backward class and 45 years for an scheduled

caste/scheduled tribe/category-1, as on the last date of submission

of the application. As on the date of the application, the petitioner

was 49 years and therefore, becomes ineligible even to participate

against the impugned notification. Let alone, not only this

recruitment process, she is now ineligible to participate in any

recruitment process, as the petitioner is now over aged. Therefore,

the petitioner submits representations to the third and fourth

respondents, both dated 14.02.2023. They read as follows:

"jUÉ,
6ಾ4 ೇ ಕ ಜಂV ೇ ಶಕರು
10

$ಾ ೇಜು ಣಇ ಾ ೆ
dಾರ^ಾಡ,

ಇಂದ,

4ೕಮ ಮ ಾ ಸ. T ೇಮಠ
c/o c.$ೆ. ಭಟA ಸೂ),
At: ಮೂಡ$ೇ)
ಅಂeೆ: !ೆಗfೆ

¸Àgï,
«µÀAiÀÄ: $ೆನ ಾ $ಾ ೇg ೊ ೈV()) ಕುಮMಾ EªÀgÀÄ ¤ÃrzÀ eÁ»gÁw£À°è
ನಮೂPHರುವ ಗ4ಂಥ6ಾಲಕ ಹು ೆJLೆ !ೊಸ ಾ7 *ೇಮ$ಾ
ಾಡುವRದನು; ಸI7ತ ಇಡುವ ಕು)ತು.

ಉ ೆ2ೕಖ: 1. ,ಜಯ^ಾ] P*ಾಂಕ 08/02/2023 ರ12 ಬಂದ jಾT ಾತು.
2. ೆ$ೆ4ೕಟ) $ೆನ ಾ $ಾ ೇg ೊ ೈV ರವ)Lೆ ನನ; ಅc ¢£ÁAPÀ:
14/02/2023.

ಈ =ೕ1ನ ,ಷಯ !ಾಗೂ ಉ ೆ2ೕಖ$ೆ0 ಸಂಬಂkHದಂ/ೆ, $ೆನ ಾ $ಾ ೇg ೊ ೈV ())
ಇ12 /ಾ/ಾ01ಕ ಗ4ಂಥ6ಾಲlCಾ7 ಕFೆದ 18 ವಷ ಗ&ಂದ $ಾಯ ವ Tಸು ದುJ ಸ¢æ ಸಂ ೆI
ಯವರು jಾT ಾತು ೕ ರುವ ,ಜಯ^ಾmೆ P*ಾಂಕ 08/02/2023 ರಂ/ೆ ಗ4ಂಥ6ಾಲಕ ಹು ೆJLೆ
!ೊಸ ಾ7 *ೇಮಕ ಾಡುವRದನು; ಸI7ತLೊ&H ನನ;*ೆ;ೕ ಸP4 ಹು ೆJLೆ ಾಯಂLೊ&ಸ ೇ$ಾ7
ಈ ಮೂಲಕ ,ನಂ H$ೊಳE'/ೇ*ೆ.

ಅಲ2 ೇ $ಾಯ ದ $ೆನ ಾ $ಾ ೇg ೊ ೈVಯವ)Lೆ ಸ12Hರುವ ಮನ, ಅc ಯನು;
ತಮG ಅವLಾಹ*ೆLಾ7 ಈ ಪತ4ದ ಸಂಗಡ ಲಗ Hರು/ೇ*ೆ.

ವಂದ*ೆಗFೆa ಂPLೆ,

ಕುಮMಾ

14/02/2023 ತಮG ,[ಾbH
¸À»/-
( ಮ ಾ ಸ. T ೇಮಠ)"

(Emphasis added)
11

"jUÉ,

ಾನ $ಾಯ ದ ಗಳE
$ೆನ ಾ $ಾ ೇg ೊ ೈV())
ಕುಮMಾ,

EAzÀ,

4ೕಮ ಮ ಾ ಸ. T ೇಮಠ
c/o c.$ೆ. ಭಟA ಸೂ),
At:ಮೂಡ$ೇ)
ಅಂeೆ: !ೆಗfೆ

¸Àgï,
,ಷಯ: ಗ4ಂಥ6ಾಲಕ ಹು ೆJLೆ *ೇಮಕ ಕು)ತು.
ಉ ೆ2ೕಖ: ತಮG ಸಂ ೆIಯು ,ಜಯ^ಾ] ಪ 4$ೆಯ12 ೕ ದ eÁ»gÁvÀÄ.

ಈ =ೕ1ನ ,ಷಯ !ಾಗೂ ಉ ೆ2ೕಖ$ೆ0 ಸಂಬಂಧಪಟAಂ/ೆ, ತಮG ಸಂ ೆIಯ12 /ಾ/ಾ01ಕ
*ೆ ೆಯ12 ಗ4ಂಥ6ಾಲl/ಸ!ಾಯಕ ಗ4ಂಥ6ಾಲlCಾ7 ೇ^ೆಸ12ಸು ದುJ ನನLೆ ತಮG ಸಂ ೆIಯು
P*ಾಂಕ 08/02/2023 gÀ «dAiÀÄªÁtÂAiÀÄ°è ¤ÃrgÀÄªÀ eÁ»ÃgÁwUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ UÀæAxÀ
¥Á®PÀ ºÀÄzÉÝUÉ ಾಯಂLೊ&H 18 ವಷ ದ ನನ; ೇ^ೆ ಪ)ಗ]H ನನ;ನು; ಗ4ಂಥ6ಾಲಕ ಹು ೆJLೆ
*ೇಮಕ ಾ *ಾ ಯ ೕಡ ೇ$ಾ7 ,ನಂ H$ೊಳE'/ೇ*ೆ.

ಈ $ೆಳ7ನ ,ಷಯಗಳನು; ತಮG ಅವLಾಹ*ೆLಾ7 ೕಡು ೆJೕ*ೆ.

1. P*ಾಂಕ 19/07/2004 ರಂದು ನನ;ನು; ತಮG ಸಂ ೆIಯು /ಾ/ಾ01ಕ ಗ4ಂಥ6ಾಲlCಾ7
*ೇ_HದುJ ಇರುತ ೆ. (ಪತ4ದ ನಕಲು ಪ4 ಲಗ ಸ ಾ7 ೆ.)

2. £Á£ÀÄ B.Com/M. Lib/M Phill-2009 ¥ÀzÀ«ÃzsÀgÉAiÀiÁVgÀÄvÉÛÃ£É. (CAPÀ¥ÀnÖ
®UÀwÛ¸À¯ÁVzÉ)
3. ತಮG ಸಂ ೆIಯು ನfೆಸು ರುವ ^ಾ]ಜ , ಾ ಲಯ !ಾಗೂ ಆಟ; & ೈನ; $ಾ ೇcನ12
ಗ4ಂಥ 6ಾಲlCಾ7 ಸತತ 18 ವಷ ಗಳ $ಾಲ ೇ^ೆ ಸ12HದುJ ತಮG ಸಂ ೆIಯ
ಆ ೇಶದಂ/ೆ ,dಾ k ಾಜ n1Mೆl;o ನ12 ಸ!ಾಯಕ ಗ4ಂಥ6ಾಲlCಾ7ದುJ ಸದ
ತಮG ೇ ಸಂ ೆIಯ 6ಾ4ಥ_ಕ [ಾ ೆಯ12 ಗ4ಂಥ 6ಾಲl / ಆpೕq $ೆಲಸವನು;
ವ Tಸು ೆJೕ^ೆ.
12

4. ಸಂ ೆIಯ ಆ ೇಶಗಳನು; 6ಾ4 ಾ]ಕ^ಾ7 6ಾ1H ೆJೕ*ೆ !ಾಗೂ ಇನು; ಮುಂ ೆಯೂ
6ಾ1ಸು/ೇ*ೆ.

ಸಂ ೆIಯ12ನ ನನ; ಸು ಾರು 18 ವಷ ಗಳ ೇ^ೆ !ಾಗೂ ವrೕ_ ಯ $ಾರಣ ಇ ೇ ನನ;
$ೊ*ೆಯ ಅವ$ಾಶ ಎನು;ವದನು; ಪ)ಗ]H ಮTFೆCಾ7ರುವ ನನLೆ ಗ4ಂಥ 6ಾಲl ಹು ೆJಯ12
ಾಯಂLೊ&H *ಾ ಯ ೕಡ ೇ$ಾ7 ಈ ಮೂಲಕ ಮ/ೊ=G ,ನಂ H$ೊಳE' ೆJೕ*ೆ.

ವಂದ*ೆಗFೆa ಂPLೆ,

ಕುಮMಾ ತಮG ,[ಾbH

14/02/2023 ¸À»/-
( ಮ ಾ ಸ, T ೇಮಠ)"

(Emphasis added)

Noticing that the fact, the fourth respondent - Society is

proceeding with the recruitment process, approaches this Court in

the subject petition. Just before approaching this Court, the State

issues an endorsement indicating that the case of the petitioner

cannot be considered owing to the representations as afore-quoted.

11. The issue now would be whether the petitioner is entitled

for consideration of her service in the fifth respondent - Institution

for regularisation.

12. The service history of the petitioner requires reiteration.

The petitioner gets appointed on 19.07.2004, against a clear
13

vacancy caused of a retirement of a Librarian. Therefore, it was a

sanctioned vacant post as on the date the petitioner was appointed.

In 2010, it is brought to the notice of the State by the Society to

consider her case for regularization. Time and age both pass by as

it is trite that time and age will wait for none. The petitioner today,

is 51 years old and as on the date of the impugned notification, she

was 49 years old. As on the date of the impugned notification, the

petitioner had put in 19 years of continuous uninterrupted service

against a sanctioned vacant post, albeit, on temporary basis.

Today, she has put in 21 years of service and 51 years old. Even if

she wants to participate in any direct recruitment process, the age

that has advanced would undoubtedly come in her way. Therefore,

permitting the process of recruitment to the post of Librarian to go

on, would be leaving the petitioner in the lurch and her fate to hang

in thin air, after having served for 21 years in an aided Institution,

against a sanctioned vacant post.

13. The State ought to have taken note of these factors with

little empathy, as regularization is undoubtedly available in posts

where they are sanctioned and personnel working in those posts on
14

vacancy created. The petitioner fits into all the parameters

necessary for regularization as is held by the Apex Court in the

aftermath of the judgment rendered in the case of SECRETARY,

STATE OF KARNATAKA VS. UMADEVI (3)1, rendered on

10.04.2006. Considering the said judgment, the Apex Court in the

case of SHRIPAL v. NAGAR NIGAM2, has held as follows:

"3. The factual matrix leading up to the appeal before
us is as follows:

3.1. The Appellant Workmen claim to have been
engaged as Gardeners (Malis) in the Horticulture Department
of the Respondent Employer, Ghaziabad Nagar Nigam, since
the year 1998 (in some instances, since 1999). According to
them, they continuously discharged horticultural and
maintenance duties-- such as planting trees, maintaining
parks, and beautifying public spaces--under the direct
supervision of the Respondent Employer. They further allege
that no formal appointment letters were ever issued to them,
and that they were persistently denied minimum wages,
weekly offs, national holidays, and other statutory benefits.

3.2. In 2004, the Appellant Workmen, along with many
other similarly situated employees, raised an industrial dispute
(C.B. Case No. 6 of 2004) before the Conciliation Officer at
Ghaziabad, seeking regularization of their services and the
requisite statutory benefits. They contend that, upon learning
of this demand, the Respondent Employer began delaying their
salaries and subjected them to adverse working conditions.
Eventually, around mid-July 2005, the services of numerous
workmen were allegedly terminated orally, without any notice,
written orders, or retrenchment compensation.

1
(2006) 4 SCC 1
2
2025 SCC OnLine SC 221
15

3.3. Since the above termination took place during the
pendency of the conciliation proceedings, the Appellant
Workmen argue it violated Section 6E of the U.P. Industrial
Disputes Act, 1947. Consequently, the State Government
referred the disputes concerning both (i) regularization and (ii)
legality of the alleged termination, to the Labour Court,
Ghaziabad for adjudication.

3.4. The Labour Court proceeded to decide the
references vide two orders:

(i) Order dated 03.06.2011 : In numerous adjudication
cases (e.g., Adjudication Case Nos. 448, 451, 467 of
2006, etc.), the Labour Court passed awards holding the
terminations illegal for want of compliance with Section
6N of the U.P. Industrial Disputes Act, 1947, and
directed reinstatement with 30% back wages.

(ii) Order dated 11.10.2011 : However, in about 41 other
adjudication cases (e.g., Adjudication Case Nos. 269,
270, 272, etc.), the Labour Court arrived at a contrary
conclusion, dismissing the claims on the finding that the
concerned workmen had not been engaged directly by
the Nagar Nigam but rather through a contractor, and
hence had no enforceable right to reinstatement or
regularization against the Respondent Employer.

3.5. Aggrieved by the adverse portion of the awards
(i.e., those granting reinstatement), the Respondent
Employer, Ghaziabad Nagar Nigam, filed several writ petitions
before the High Court of Judicature at Allahabad, challenging
the Labour Court's findings. On the other hand, the workmen
whose claims were dismissed by the other set of awards also
approached the High Court by filing their own writ petitions. All
these writ petitions were heard together, culminating in the
common judgment dated 01.03.2019, which partly modified
the Labour Court's conclusions.

3.6. Through the impugned judgment, the High
Court held that while the Labour Court was correct in
exercising jurisdiction under the U.P. Industrial
Disputes Act (since municipalities could be treated as
"industry"), there remained factual complexities as to
16

whether the workmen were genuinely on the rolls of the
Nagar Nigam or were provided by contractors. The High
Court also noted that the State Government had, by
notifications/orders, placed a ban on fresh recruitments
in Municipal Corporations, thereby restricting direct
appointments to any post. Ultimately, the High Court
partially modified the relief granted, directing re-
engagement of the workmen on daily wages, with pay
equivalent to the minimum in the regular pay scale of
Gardeners, while allowing future consideration of their
regularization if permissible by law.

4. Both the Appellant Workmen and the Respondent
Employer have now approached this Court by way of Special
Leave Petitions. The workmen primarily seek full reinstatement
with back wages and a direction to secure their regularization,
whereas the Respondent Employer seeks to quash the
modifications ordered by the High Court on the ground that
the High Court exceeded its jurisdiction by granting partial
relief akin to regular employees, contrary to constitutional
provisions and the State's ban on recruitment.

5. Learned counsel for the Appellant Workmen made
the following submissions:

I. Continuous Service & Comparable Duties : The
Appellant Workmen had continuously discharged
horticultural and maintenance duties-- like planting
trees, upkeep of public parks, and general
beautification--under the direct supervision and control
of the Respondent Employer for periods often exceeding
a decade. They insist such longstanding, continuous
work parallels that of permanent Gardeners.

II. Direct Engagement & Wage Disbursement : They aver
that their wages, though inadequate, were paid directly by the
Horticulture Department of the Respondent Employer,
nullifying the Employer's claim of contractual hiring. Muster
rolls and internal notes are cited to show direct employer-
employee relations.

III. Illegal Termination : Alleging violation of Sections 6E
and 6N of the U.P. Industrial Disputes Act, 1947, the Appellant
17

Workmen maintain their abrupt termination in July 2005
(during pendency of conciliation proceedings) was devoid of
due process and statutory payments, rendering it patently
illegal.

IV. Entitlement to Reinstatement & Regularization :
Given their long service and the principle of "equal pay for
equal work," the Appellant Workmen submit they deserve full
reinstatement with back wages and a legitimate pathway to
regularization, as opposed to the partial relief of mere daily-
wage re-engagement prescribed by the High Court.

6. On the other, the learned counsel for the Respondent
Employer, Ghaziabad Nagar Nigam made the following
submissions:

I. Compliance with Constitutional Requirements :
Emphasizing the constitutional scheme of public employment,
it is urged that there was (and remains) a ban on fresh
recruitment in Municipal Corporations, and no proper selection
process was ever followed to appoint the Workmen on any
sanctioned posts.

II. No Direct Employer-Employee Relationship : The
Respondent Employer contends that all horticulture work was
carried out through independent contractors appointed via
tender processes. It claims any partial wage documentation
cited by the Workmen fails to establish direct engagement.

III. Inapplicability of Regularization : Relying on Secretary,
State of Karnataka v. Umadevi1, it is asserted that no daily
wager can claim permanent absorption without adherence to
constitutional requirements and availability of duly sanctioned
vacancies.

IV. Inadequate Proof of 240 Days' Service : The Respondent
Employer points out that the Workmen did not convincingly
demonstrate they completed 240 days of continuous work in
any calendar year, thus undermining the assertion that their
cessation from service was illegal.

V. Challenge to Modified Relief: Finally, it argues that the High
Court's direction to pay minimum-scale wages and to consider
18

the Workmen for future regularization oversteps legal
boundaries, disregards the recruitment ban, and fosters an
impermissible avenue of public employment. The Respondent
Employer, therefore, seeks the quashing of the impugned
judgment.

7. Having heard the arguments and submissions of the
learned counsel for the parties and having perused the record,
this Court is of the considered opinion that the nature of
engagement of the Appellant Workmen, the admitted shortage
of Gardeners, and the circumstances under which their
services were brought to an end, merit closer scrutiny.

8. It is undisputed that, while the Appellant Workmen
were pressing for regularization and proper wages through
pending conciliation proceedings, the Respondent Employer
proceeded to discontinue their services, without issuing prior
notice or granting retrenchment compensation. At this
juncture, it is to have a look at the requirements of Section 6E
of the U.P. Industrial Disputes Act, 1947 which has been
reproduced hereunder:--

"6E. [Conditions of service, etc. to remain
unchanged in certain circumstances during the
pendency of proceedings. [Inserted by U.P. Act No. 1 of
1957.]

(1) During the pendency of any conciliation proceeding
before a Conciliation Officer or a Board or of any
proceeding before a Labour Court or Tribunal in respect
of an industrial dispute, no employer shall, -

(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before the
commencement of such proceeding, or

(b) for any misconduct connected with the dispute,
discharge or punish, whether by dismissal or
otherwise any workman concerned in such
dispute save with the express permission in
19

writing of the authority before which the
proceeding is pending.

(2) During the pendency of any such proceeding in
respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to a
workman concerned in such dispute, -

(a) alter, in regard to any matter not connected with
the dispute, the conditions of service applicable to
that workman immediately before the
commencement of such proceeding, or

(b) for any misconduct not connected with the
dispute, discharge or punish, whether by
dismissal or otherwise:

Provided that no such workman shall be
discharged or dismissed, unless he has been paid
wages for one month and an application has been
made by the employer to the authority before
which the proceeding is pending for approval of
the action taken by the employer.

(3) Notwithstanding anything contained in sub-
section (2) no employer shall during the pendency of
any such proceeding in respect of an industrial dispute,
take any action against any protected workman
concerned in such dispute, -

(a) by altering, to the prejudice of such protected
workman, the conditions of service applicable to
him immediately before the commencement of
such proceeding, or

(b) by discharging or punishing, whether by dismissal
or otherwise, such protected workman, such with
the express permission in writing of the authority
before which the proceeding is pending.
Explanation. - For the purposes of this sub-
section, a 'protected workman' in relation to an
establishment, means a workman who, being an
officer of a registered trade union connected with
20

the establishment, is recognized as such in
accordance with rules made in this behalf.

(4) In every establishment, the number of workmen
to be recognized as protected workmen for the purposes
of sub-section (3) shall not exceed one per cent of the
total number of workmen employed therein subject to a
minimum number of five protected workmen and a
maximum number of one hundred protected workmen
and for the aforesaid purpose, the State Government
may make rules providing for the distribution of such
protected workmen among various trade unions, if any,
connected with the establishment and the manner in
which they may be chosen and recognized as protected
workmen.

(5) Where an employer makes an application to a
Board, Labour Court or Tribunal under the proviso to
sub-section (2) for approval of the action taken by him,
the authority concerned shall, without delay, hear such
application and pass, as expeditiously as possible, such
order in relation thereto as it deems fit."

9. On a plain reading of this section, we can
deduce that any unilateral alteration in service
conditions, including termination, is impermissible
during the pendency of such proceedings unless prior
approval is obtained from the appropriate authority. The
record in the present case does not indicate that the
Respondent Employer ever sought or was granted the
requisite approval. Prima facie, therefore, this conduct
reflects a deliberate attempt to circumvent the lawful
claims of the workmen, particularly when their dispute
over regularization and wages remained sub judice.

10. The Respondent Employer consistently labelled the
Appellant Workmen as casual employees (or workers engaged
through an unnamed contractor), yet there is no material
proof of adherence to Section 6N of the U.P. Industrial
Disputes Act, 1947, which mandates a proper notice or wages
in lieu thereof as well as retrenchment compensation. In this
context, whether an individual is classified as regular or
temporary is irrelevant as retrenchment obligations under the
21

Act must be met in all cases attracting Section 6N. Any
termination thus effected without statutory safeguards cannot
be undertaken lightly.

11. xxxx

12. xxxx

13. xxxx

14. The Respondent Employer places reliance
on Umadevi (supra)2 to contend that daily-wage or
temporary employees cannot claim permanent
absorption in the absence of statutory rules providing
such absorption. However, as frequently
reiterated, Uma Devi itself distinguishes between
appointments that are "illegal" and those that are
"irregular," the latter being eligible for regularization if
they meet certain conditions. More importantly, Uma
Devi cannot serve as a shield to justify exploitative
engagements persisting for years without the Employer
undertaking legitimate recruitment. Given the record
which shows no true contractor-based arrangement and
a consistent need for permanent horticultural staff the
alleged asserted ban on fresh recruitment, though real,
cannot justify indefinite daily-wage status or continued
unfair practices.

15. It is manifest that the Appellant Workmen
continuously rendered their services over several years,
sometimes spanning more than a decade. Even if certain
muster rolls were not produced in full, the Employer's
failure to furnish such records--despite directions to do
so--allows an adverse inference under well-established
labour jurisprudence. Indian labour law strongly
disfavors perpetual daily-wage or contractual
engagements in circumstances where the work is
permanent in nature. Morally and legally, workers who
fulfil ongoing municipal requirements year after year
cannot be dismissed summarily as dispensable,
particularly in the absence of a genuine contractor
agreement. At this juncture, it would be appropriate to
recall the broader critique of indefinite "temporary"
22

employment practices as done by a recent judgment of
this court in Jaggo v. Union of India3 in the following
paragraphs:

"xxxxxxxxx"

16. xxx

17. xxx

18. The impugned order of the High Court, to the extent
they confine the Appellant Workmen to future daily-wage
engagement without continuity or meaningful back wages, is
hereby set aside with the following directions:

I. The discontinuation of the Appellant Workmen's
services, effected without compliance with Section 6E
and Section 6N of the U.P. Industrial Disputes Act,
1947, is declared illegal. All orders or communications
terminating their services are quashed. In consequence,
the Appellant Workmen shall be treated as continuing in
service from the date of their termination, for all
purposes, including seniority and continuity in service.

II. The Respondent Employer shall reinstate the Appellant
Workmen in their respective posts (or posts akin to the
duties they previously performed) within four weeks
from the date of this judgment. Their entire period of
absence (from the date of termination until actual
reinstatement) shall be counted for continuity of service
and all consequential benefits, such as seniority and
eligibility for promotions, if any.

III. Considering the length of service, the Appellant
Workmen shall be entitled to 50% of the back
wages from the date of their discontinuation until
their actual reinstatement. The Respondent
Employer shall clear the aforesaid dues within
three months from the date of their
reinstatement.

IV. The Respondent Employer is directed to initiate a
fair and transparent process for regularizing the
23

Appellant Workmen within six months from the
date of reinstatement, duly considering the fact
that they have performed perennial municipal
duties akin to permanent posts. In assessing
regularization, the Employer shall not impose
educational or procedural criteria retroactively if
such requirements were never applied to the
Appellant Workmen or to similarly situated
regular employees in the past. To the extent that
sanctioned vacancies for such duties exist or are
required, the Respondent Employer shall expedite
all necessary administrative processes to ensure
these long-time employees are not indefinitely
retained on daily wages contrary to statutory and
equitable norms.

19. In view of the above, the appeal(s) filed by the
workmen are allowed, whereas the appeal(s) filed by the
Nagar Nigam Ghaziabad are dismissed."

(Emphasis supplied)

In the afore-quoted judgment, the Apex Court observes that

such employment would become exploitative engagement, if

regularization would not ensue. Those were the cases of workmen

covered under the provisions of the Industrial Disputes Act, in the

case of hand is that of a Librarian, who is in the position of a

teacher.

14. If the case at hand is considered on the touch stone of

the principles laid down by the Apex Court, what would

unmistakably emerge is that, the fate of the petitioner cannot be
24

left to be marooned in thin air or leave her life in the lurch. At the