Allowed

Mangalore Electricity Supply Company Limited v. Sri Naveen Chandra

Karnataka HC13 Jul 2021WA/61/2020

Case brief

AI extract

What is this about?

On preliminary hearing, the Division Bench set aside a single judge order granting preferential treatment and age relaxation to employees of the appellant, relying on a Division Bench judgment that prohibits the High Court from directing regularization or preferential recruitment absent statutory recruitment rules.

What did the court decide?

The single judge's order allowing the writ petitions by giving preferential treatment is set aside; the writ appeal is allowed.

Mangalore Electricity Supply Company… — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE SATISH CHANDRA SHARMA

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AND

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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WRIT APPEAL NO.61/2020 (S-RES)

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BETWEEN:

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MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED, ”MESCOM BHAVAN” BEJAI, MANGALURU D.K -575 004. NOW REPRESENTED BY ITS GENERAL MANAGER

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(A AND HRD).

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MANGALORE ELECTRICITY SUPPLY COMPANY MESCOM BHAVAN, BEJAI MANGALURU (D.K) - 575004 NOW REPRESENTED BY ITS

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THE CHIEF FINANCIAL OFFICER. .... APPELLANTS

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(BY SRI B.C.PRABHAKAR, ADVOCATE)

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AND:

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SRI NAVEEN CHANDRA, S/O LATE JANARDHANA, J.J. COMPOUND, KEMMINJE TEMPLE ROAD, DARBE POST, PUTTUR TALUK, D.K. - 574 201. AGED ABOUT 45 YEARS.

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SMT. RAJASHREE U, W/O LATE SANTHOSH SHETTY, AGED ABOUT 41 YEARS, R/AT BANNUR POST, PUTTUR TALUK, D.K. 574 201, AGED ABOUT 45 YEARS.

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SMT. NAMITHA, W/O ROHITHAKSHA, AGED ABOUT 41 YEARS, MOTLETHADKA HOUSE, DARBE POST, PUTTUR TALUK, D.K. - 574 201, AGED ABOUT 45 YEARS.

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THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BENGALURU-560 001.

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KARNATAKA POWER TRANSMISSION CORPORATION LIMITED, KAVERI BHAVAN, BENGALURU-560 009.

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BY ITS MANAGING DIRECTOR. ... RESPONDENTS

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(BY SRI HAREESH BHANDARY T, ADVOCATE FOR R1 TO R3, SRI S RAJASHEKAR, AGA FOR R4, SMT.VAIBHAVI, ADVOCATE FOR RAKSHITHA D.J, ADVOCATE FOR R5)

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THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 18.12.2019 i.e., PASSED BY THE LEARNED SINGLE JUDGE IN WP NOS.37060-37062/2017 (S-RES) AND ALLOW THE WRIT APPEAL FILED BY THE APPELLANT.

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THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, SATISH CHANDRA SHARMA J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The present writ appeal has arisen out of the judgment dated 18.12.2019 passed by the learned Single Judge in W.P. Nos.37060-37062/2017 (Naveen Chandra and others vs. The State of Karnataka and others).

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The facts of the case reveals that respondent Nos.1, 2 and 3 have filed a writ before the learned Single Judge stating that they have joined the services of the appellant in 1996, 1999 and 2000 respectively for various posts and they are entitled to participate in the process of selection by granting relaxation in age as well in respect of qualifications. The facts further reveal that a Notification was issued on 08.01.2016 inviting applications for the posts of Assistants and Junior Assistants and respondent Nos.1, 2 and 3 wanted to participate in the process of selection, that too by availing certain relaxations. The learned Single Judge has allowed the writ petition by taking into account the judgment delivered in the case of Ms. S Pushpa and others vs.

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Government of Karnataka and others and connected matters passed in W.P. Nos.173-195/2004 decided on 23.02.2014.

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The undisputed facts of the case are that in the State of Karnataka, initially Karnataka Electricity Board was in existence. However, in order to ensure smooth functioning of the Electricity Board, generation, transmission and distribution of electricity, Karnataka Power Transmission Corporation Limited was incorporated. For the purpose of transmission of electricity and for supply of electricity, five other Companies were incorporated, i.e., BESCOM, MESCOM, GESCOM, HESCOM and CESC. The respondent Nos.1, 2 and 3 are working with Mangalore Electricity Supply Company through a contractor and the learned Single Judge has allowed their writ petition by directing the appellant to decide their representations keeping in mind the scheme framed on 06.05.2004 by some other Company.

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Paragraphs 2, 3 and 4 of the order passed by the learned Single Judge reads as under:

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“ 2. The learned counsel for the petitioners further submits that in terms of the said judgment, a Scheme

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vide Notification dated 06.05.2004 at Annexure-C has been framed, too and therefore, the petitioners being similarly circumstanced qua the respondent – MESCOM which again is a Government Company as defined under Section 617 of the erstwhile Companies Act, 1956, need to be granted similar relief.

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3. Learned AGA Mr. Ramesh Jois appearing for the first respondent refutes the above submission pointing out that in the judgment mentioned above the third respondent – MESCOM was not party thereto and therefore, the said judgment does not bind it. This contention is bit difficult to accept inasmuch as, all electrical supply companies are the subsidiaries of the second respondent – KPTCL which was a party to the said judgment as well and therefore, the parity is not lost merely because the third respondent – MESCOM was not a party to the judgment in question, especially when in all other aspects, the petitioners are similarly circumstanced.

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4. In the above circumstances, these writ petitions are disposed of directing respondent Nos.2 & 3 to consider the petitioners’ representations dated 17.07.2017, 21.07.2017 and 20.07.2017, the copies whereof is at Annexures-H, H1 and H2 respectively, in terms of the aforesaid judgment and

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also the Scheme promulgated vide Notification dated 06.05.2004 at Annexure-C and to inform the petitioners individually the result of such consideration within three months.”

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It is made clear that if the consideration does not take place within the prescribed period above, the respondent Nos. 2 & 3 jointly shall be liable to pay Rs.5,000/- to each of the petitioners for every delay of one month, till the consideration is made. ”

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The learned counsel for the appellants has straight away drawn attention of this Court to the judgment delivered by the Division Bench dated 05.07.2015 passed in W.A. No.10404-100521/2017 has contended that a similar prayer was rejected by the Division Bench and it was held by the Division Bench that no preferential treatment in the matter of public recruitment can be granted. The order passed by the learned Division Judge in paragraphs 26 to 29 reads as under:

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“ 26. Hon’ble Apex Court while examining the plea of the workers who were working in the canteen run by the State Government for the benefit of the Secretariat employees and who had

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claimed they were employees of State Government itself, came to be turned down by holding that it is not open to the High Court in exercise of its discretion under Article 226 of the Constitution of India either to frame a Scheme by itself or to direct the State to frame a Scheme for regularizing the services of ad-hoc employees or daily wages employees who had not been appointed in terms of extant Rules framed either under a Statute or under the proviso to Article 309 of the Constitution of India. It has been further held:

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“46. The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution of India either to frame a scheme by itself or to direct the State to frame a scheme for regularizing the services of ad-hoc employees or daily wages employees who had not been appointed in terms of the extant service rules framed either under a statute or under

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the proviso to Article 309 of the Constitution of India. Such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Article 162 of the Constitution of India cannot prevail over a statute or statutory rules framed under proviso to Article 309 thereof. The State is obligated to make appointments only in fulfillment of its constitutional obligation as laid down in Articles 14, 15 and 16 of the Constitution of India and not by way of any regularization scheme. In our constitutional schemes, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State. Denial of such a claim by some officers of the State times and again had been deprecated by this Court. In any view, in our democratic polity, an authority howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.

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47. It is not necessary for us to dilate further on the issue as recently in State of

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U.P. vs. Neeraj Awasthi and others (2005) 10 SCALE 286), it has been clearly held that the High Court has no jurisdiction to frame a scheme by itself or direct framing of such a scheme by the State.”

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27. In the light of above authoritative pronouncement of the Hon’ble Apex Court referred to herein supra, it would not detain us for too long to accept the contention of Mr.B.S.Kamate, appearing for appellant – KPTCLHESCOM and to brush aside the contention of Mr.Vivek Holla for the reasons aforestated which can be summarized as under:

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(a) Petitioners were never appointed by KPTCL-HESCOM,

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(b) There is no and there was never privity of contract between the writ petitioners and appellant HESCOM.

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(c) Writ petitioners were employed and appointed by the contracting agency and as such, they would be bound by the contractual terms,

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(d) Appellant – HESCOM is governed by Regulations 1969, insofar as appointment is concerned and thus any Scheme formulated as per the direction of the learned single Judge would be contrary to said Regulations and thereby it would tantamount to “illegal” appointments.

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(e) The status of writ petitioners even accepted to be as ‘litigous employment’ they cannot take umbrage under it, inasmuch as they had never been appointed by the appellant – KPTCL – HESCOM.

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(f) The details like names of the persons, number of days worked, salary/wages paid, leave obtained, as to whether they possessed requisite prescribed qualification are never in the know-how of the appellantKPTCL-HESCOM.

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28. Thus, in conclusion, it has to be necessarily held, what writ petitioners could not achieve directly would not be entitled to achieve indirectly by seeking preferential treatment for being recruited, sacrificing the rights of those

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probable candidates, who could not participate in the recruitment process on account of same not having been notified. As such, we are of the considered view that direction issued to the respondent-Corporation and the Government at paragraphs 25 (ii) to (iv) would not stand the test of law. Hence, we answer to point No.(ii) formulated hereinabove in the negative i.e., against writ petitioners and in favour of appellant-KPTCL-HESCOM.

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29. For the reasons aforestated, we proceed to pass the following:

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ORDER

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(i) Writ appeal Nos.101190/2016, 101202-101407/2016 and W.A.No.100404-100521/2017 are allowed and directions issued by learned single Judge at paragraphs 25 (ii) to (iv) is hereby set aside,

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(ii) Writ Appeal Nos.100359-565/2016, 100566-611/2016 and W.A.Nos.11751255/2016 are dismissed and the order passed by the learned single Judge rejecting the prayer for regularization of the writ petitioners, is upheld and

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consequently, Writ Petition Nos.107380107497/2015, Writ Petition Nos.107025107105/2015, Writ Petition Nos.101732938/2015 and Writ Petition Nos.59097142/2015 are dismissed.

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(iii) Costs made easy.”

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In the light of the aforesaid judgment, as controversy involved in the present case stands concluded, there cannot be preferential treatment to respondent Nos.1, 2 and 3 and therefore, the order passed by the learned Single Judge is set aside. The writ appeal stands allowed.

Sd/-

JUDGE

Sd/JUDGE

ykl

Mangalore Electricity Supply Company Limited v. Sri Naveen Chandra

Case brief

What is this about?

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Mangalore Electricity Supply Company Limited v. Sri Naveen Chandra

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