Partly allowed

Mahadevappa S/O Ramappa Dalawai, v. the Chief Secretary

Karnataka HC1 Mar 2019WP/104120/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed endorsements rejecting a retired daily wage employee's claim for service regularization and retirement benefits. The court held the rejection was discriminatory, affirmed that benefits are accrued rights not bounties, and directed the respondent to process the case for retirement benefits within twelve weeks.

What did the court decide?

Quashed impugned endorsements; directed respondents to consider case for retardal benefits and grant similar benefits to other employees within twelve weeks.

Mahadevappa S/O Ramappa Dalawai, Vs the… — Pension and Retirement Benefits | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF MARCH, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE G.NARENDAR

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WRIT PETITION No.104120/2015 (S-R)

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BETWEEN:

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SHRI MAHADEVAPPA S/O RAMAPPA DALAWAI, AGE:69 YEARS, OCC:PEON, R/O: H.NO. 732, WARD NO.3, GANDHIJI COLONY, BASAPATTANA, TQ: GANGAVATHI, DIST: KOPPAL. ...PETITIONER

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(BY SRI VIDYASHANKAR G.DALWAI, ADVOCATE)

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A N D :

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THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU.

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THE SECRETARY, GOVERNMENT OF KARNATAKA, D.P.A.R DEPT., M.S.BUILDING, BENGALURU.

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THE STATE OF KARNATAKA, REP. BY ITS SECRETARY, TO GOVERNMENT WATER RESOURCES (CADA), VIKAS SOUDHA, BENGALURU-1.

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THE ADMINISTRATOR, COMMAND AREA DEVELOPMENT DEPARTMENT, TUNGABHADRA PROJECT, MUNIRABAD, DIST: KOPPAL. ...RESPONDENTS

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(BY SRI RAJARAGHAVENDRA NAIK, HCGP)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

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227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ENDORSEMENT JASAMEI 08 CAT 2014 DATED 11.08.2014 VIDE ANNEXURE-V PASSED BY RESPONDENT NO.3 AND CADA/TBP/A2 175 08-09/1932 DATED 26.08.2014 VIDE ANNEXURE-W PASSED BY RESPONDENT NO.4 AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for the petitioner and the learned High Court Government Pleader.

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This is a case of classic example of bureaucratic ineptitude and the adage, passing on the buck. It is the case of an ex-employee who served the people who are occupying the offices and who are insensitive to the sufferings of the unfortunate class. Despite there being numerous orders as reflected on a reading of Annexure-F, the petitioner who was made to render service on a daily wage basis from 06.09.1984 till his date of retirement on 31.05.2005, has been literally ingloriously kicked out.

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The issue involved is regularisation of the services of a person who had put in more than two decades of

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service and more than 1½ decades of service i.e., even prior to the law was laid down by the Hon’ble Apex Court in the case of the Secretary, State of Karnataka and others Vs. Umadevi and others [(2006)4 SCC 1]. The petitioner was also before this Court in W.P.No.17875/2004 and the said writ petition came to be disposed of in terms of the order rendered by this Court while disposing of W.P.No.42096-42113/2001 dated 29.11.2001. This Court while disposing of the aforesaid writ petition has observed in paragraph 4 as follows:

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“4. The admitted facts reveal that the petitioners are working on Daily Wage basis and they have also completed more than 10 to 15 years of service. The question of regularization is a subject matter of several decisions of this Court. This Court, in W.P.Nos.33541-33557/1998 considered these very questions in the Judgment dated 10.09.1999. The said order of the learned Single Judge was upheld by a Division Bench in W.A.No……dated 23.01.2001. The said Judgment of the Division Bench is confirmed by dismissing SLP in SLPs(CC) Nos.7866-7980/2001 dated 05.11.2001. Again in another boson of appeals, a Division Bench of this Court in the order

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dated 24.01.2000 in W.A.Nos.5697/2000 reiterated the same view and further confirmed a direction issued by a Single Judge with regard to consideration of regularization in terms of the Judgments. There are other similar orders placed in the case on hand. In these circumstances, I am of the view that the petitioners are to be given the same treatment as in the case of similarly situated employees. The petitioners have already made a representation in terms of Annexure ‘S’ to the respondents. In these circumstances, I deem it proper to direct the petitioners to submit an additional representation with additional details in the light of the Judgment of the Supreme Court and this Court. Time for filing additional representation is four weeks from today. R2 and 3 are directed to consider the representation Annexure ‘S’ and the proposed representation to be submitted by the petitioners within 8 weeks thereafter in accordance with law and in accordance with the Judgment of this Court in W.A.Nos.5697/2000 and 6677-7351/2000 dated 24.01.2001.”

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From a reading of the above, it is apparent that the issue of regularization had been seriously agitated in several rounds of litigations before this Court both before the learned Single Judge, the Division Bench and the Hon’ble Apex Court. In the said order, the learned Single Judge has no doubt taken note of the fact that

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similarly placed persons who had approached this Court had been regularized. This Court after considering the case of the petitioner has by series of judgments pleased to grant the relief sought for therein. The other factor which further compounds the dismay of this Court is Annexure-L dated 25.08.2006 which is the proceedings of the 4^th respondent-Board whereby the persons who came to be appointed after 01.07.1984 and who had rendered 10 years of service, all such persons numbering 34 had been regularized.

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It is the case of the petitioner that he was appointed against the full time post after 01.07.1984 i.e., on 06.09.1984 vide proceedings bearing No.TBP/THAN/THRIK-CI-ADI-84-85 issued by the 4^th respondent. That, later he was transferred to the monitoring unit as Gauge Reader vide order bearing No. TDP/ CADA/ SIBBIANDI/ 146-87-88 dated 29.12.1987, a copy of which is produced as Annexure-A. That the post of Gauge Reader was sanctioned vide order No.PWD 9 CAT 86, Bengaluru, dated 09.10.1986 and

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the petitioner was appointed to the said post under the Indo-Dutch Water Management, Pilot Project, and even after the completion of the project, the petitioner continued to be employed in the said post. Thereafter, he was transferred to the post of Work Inspector vide order dated 04.08.1994 produced as Annexure-B and he was continued in the said post on a daily wage basis till he attained the age of superannuation on 31.05.2005. It is in this background that the petitioner had approached this Court in W.P.No.17875/2004 which came to be disposed of in terms of the order passed in W.P.Nos.42096-42113/2001, ordered on 02.06.2005. That pursuant to the same, the petitioner submitted the representation seeking for regularization of his service as per Annexures-H and J respectively. As there was no timely consideration, the petitioner instituted Contempt Petition registered as C.C.C.No.63/2006 and before the contempt bench, it was stated that in view of the pendency before the Apex Court in the case of the Secretary, State of Karnataka

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and others Vs. Umadevi and others, the contempt petition came to be dropped and the Hon’ble Apex Court decided the said Umadevi’s case on 10.04.2006 and at paragraph 53 of its judgment, the Hon’ble Apex Court was pleased to direct the Union and the State Government and its instrumentalities to take steps as a one-time measure to regularize the services in respect of persons who were irregularly appointed and who had rendered service for more than a decade in a sanctioned post without the aid of any Court orders.

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That the petitioner was appointed against a vacant full time post and by the time, the judgment of Hon’ble Apex Court was rendered, he had already put in more than two decades of service and a direction had also been issued by this Court in W.P.No.17875/2004 which came to be disposed of in terms of the order in W.P.Nos.42096-42113/2001. Despite the same, the representations came to be rejected on the ground that the petitioner had already retired from service and that Rules do not provide for regularization of the services of

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a person who is superannuated and the said endorsement was issued on 11.08.2014 and is produced as Annexure-V. The said endorsement is issued by the 2^nd respondent. The 4^th respondent also by endorsement dated 26.08.2014 has intimated the petitioner that he is ineligible to have his services regularized in terms of the Government Order. Hence, being aggrieved, the petitioner is before this Court.

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The learned counsel for the petitioner would draw the attention of this Court to Annexure-Q and would contend that this Court in similar circumstances and in respect of a similarly placed person employed by the 4^th respondent has been pleased to order the writ petition praying for grant of retiral benefits in the following manner:

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“6. In the light of the above, what is also to be noticed is that the learned counsel for the petitioner has relied on the earlier decision of this Court inW.P.No.15209/2004 disposed of on 30.10.2006 wherein the retiral benefits had been denied in respect of the persons who had been retired prior to 17.02.2003. This Court was of the view that the

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retiral benefits is not a bounty and the same cannot be denied by fixing the cutoff dates and therefore, had directed that the retrial benefits be paid. Against the said order, an appeal was filed in W.A.No.189/2007 which was disposed on 15.06.2010 and the order of the learned Single Judge was confirmed. It was also observed by the Hon’ble Division Bench that in earlier cases, the cut-off dates had not been accepted and therefore, the benefits are payable. It is also brought to the notice of this Court that against the said judgment a Special Leave Petition filed before the Hon'ble Supreme Court in C.C.No.5029/2011 also the Government has not been successful.”

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7. If these aspects of the matter are kept in view, the fact that the retiral benefits cannot be denied would be clear. That apart, what is also to be noticed is that in the instant case, the services of the petitioner was regularised by passing an order dated 25.08.2006 and the date with effect from which the regularisation is made is also indicated. In the said order, it is made clear that all the benefits which are payable would be payable as per the Government Orders which are in force. In the instant case, as noticed, the respondents have filed their objection statement and have also indicated that further orders would be passed. Merely because such orders have not been passed, the retiral benefits cannot be denied to the employee who has rendered long length of service. Therefore, the prayer made by the petitioner requires to be accepted.

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8. In the result, the petition stands disposed of. The impugned portion of the endorsement as at Annexure-G and Annexure-N stand quashed. A direction is issued to the respondents to consider the case of the petitioner for grant of the retiral benefits keeping in view the length of service and the Regulations applicable in that regard towards payment of the retiral benefits. The same shall be made expeditiously. No order as to costs.”

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It is not in doubt that by proceedings dated 25.08.2006 produced as Annexure-L to the writ petition, the Government has permitted the regularization of such persons who have been appointed, post 01.07.1984 on a daily wage basis as against post that were lying vacant. It is the case of the petitioner that he came to be appointed against a permanent vacant post on 06.09.1984. The said assertion is borne out by the appointment order. If that be the case, then no reasons are set out by the respondents as to why the petitioner has been discriminated and as to why the similar benefit in the form of regularization of service and grant of retiral benefits is not extended to the petitioner.

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In that view of the matter, the endorsement rejecting the request for regularization stands vitiated as being discriminatory and arbitrary. That apart, it is also necessary to observe that the petitioner had approached this Court in W.P.No.17875/2004 i.e., well before the date of retirement and the writ petition came to be disposed of on 02.06.2005 with a direction in similar terms as in W.P.Nos.42096-42113/2001. In that view, a right is also vested in the petitioner to have his case considered in terms of the persons who came to be appointed under Annexure-L and whose rights stood adjudicated under the order dated 02.06.2005.

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On perusal of the impugned endorsement, it is seen neither Annexure-L nor the direction issued by this Court while disposing of W.P.No.17875/2004 have been taken into consideration which reflects the sheer apathy of the officers who were incharge at the relevant point of time.

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It is also an undeniable fact, as observed by this Court, that retiral benefits are not a bounty but benefits that have accrued to an employee on account of his past services. In that view of the matter, the rejection of the petitioner’s claim for regularization of services is unsustainable. It is not in dispute that a retired employee on account of the regularization would be entitled to monetary benefits that flow as a consequences of the act of post retiral regularization by the employer. In that view of the matter also, the impugned endorsements are vitiated.

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In the result, the writ petition stands disposed of. The impugned endorsements at Annexures-V and W stand quashed. A direction is issued to the respondents to consider the case of the petitioner for grant of retiral benefits keeping in view the length of services and the regulations applicable in that regard towards payment of retiral benefits and the consideration shall also be after taking into consideration the proceedings of the 4^th respondent dated 25.08.2006 vide Annexure-L to the

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writ petition. It is further ordered that the petitioner shall also be entitled to similar benefits as extended to the employees detailed under Annexure-L.

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Petition stands ordered accordingly. The exercise of consideration of the petitioner’s case shall be expedited by the 4^th respondent and at any rate within an outer limit of twelve weeks from the date of receipt of certified copy of this order.

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In view of the above order, there shall be no order as to costs.

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(SD/-) JUDGE

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jm/-

Mahadevappa S/O Ramappa Dalawai, v. the Chief Secretary

Case brief

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Mahadevappa S/O Ramappa Dalawai, v. the Chief Secretary

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