Allowed

G Sandhya v. the State of Karnataka

Karnataka HC16 May 2023WP/19344/2014

Case brief

AI extract

What is this about?

Petitioners were Group-C employees of a medical institute working since 2006 against sanctioned posts. The State had decided to regularize them but withdrew the order citing financial burden. The High Court quashed the withdrawal, directing regularization relying on the Umadevi principles.

What did the court decide?

Impugned Government Order dated 03.09.2013 and endorsement dated 05.02.2013 quashed. Respondents directed to give effect to the Government Order dated 14.03.2013 regularizing the petitioners' services

G Sandhya Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF MAY, 2023

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BEFORE

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THE HON’BLE MR.JUSTICE S.G.PANDIT

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WRIT PETITION No.19344/2014 C/w.

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WRIT PETITION No.49297/2014 (S-RES)

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IN W.P.No.19344/2014:

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BETWEEN:

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1 . G SANDHYA

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D/O GURUMURTHACHAR, AGED ABOUT 39 YEARS,

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WORKING AS TYPIST,

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2 . DIVAKAR B

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S/O LATE K BASAVACHAR,

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AGED ABOUT 52 YEARS,

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WORKING AS MEDICAL RECORD OFFICER,

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3 . DEEPAK M

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S/O CHIKKARAJU AGED ABOUT 32 YEARS,

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RECORD KEEPER CUM CLERK,

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4 . KRISHANA B N

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S/O NANJUNDASHETTY, AGED ABOUT 45 YEARS,

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WORKING AS DEPUTY LIBRARIAN,

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5 . NAGARAJU B

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S/O LATE BOMMALINGEGOWDA, AGED ABOUT 40 YEARS

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WORKING AS MANAGER/CARE TAKER

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6 . PRATHIMA K W/O N SURESH, AGED ABOUT 33 YEARS WORKING AS MANAGER/CARE TAKER 7 . RAVICHANDRA K S/O KEMPEGOWDA, AGED ABOUT 31 YEARS WORKING AS GROUP "D", 8 . SURENDRA H P S/O PUTTASWAMY H K AGED ABOUT 40 YEARS WORKING AS COMPUTER OPERATOR 9 . VISHWANATH M A S/O APPAJI H B AGED ABOUT 35 YEARS WORKING AS COMPUTER OPERATOR 10 . CHINNAMMA W/O LATE MALLEGOWDA, AGED ABOUT 43 YEARS WORKING AS GROUP "D" ...PETITIONERS (BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL A/W. SRI.VINAYAKA.B., ADV. FOR P2 TO P6, P8-P10, P1 & P7 – SERVED) AND: 1 . THE STATE OF KARNATAKA REP BY ITS PRINCIPLE SECRETARY HEALTH AND FAMILY WELFARE (MEDICAL EDUCATION) VIDHANA SOUDHA, DR AMBEDKAR ROAD, BANGALORE-560 001 2 . THE DIRECTOR MANDYA INSTITUTE OF MEDICAL SCIENCE,

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DISTRICT HOSPITAL CAMPUS, MANDYA-571 401

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….RESPONDENTS

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(BY SRI.SHOWRI.H.R., AGA FOR R1; SRI.R.S.RAVI, SENIOR COUNSEL A/W. SRI.D.V.NARENDRA GOWDA., ADV. FOR R2.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT ISSUED BY THE R-2 THE DIRECTOR OF MANDYA INSTITUTE OF MEDICAL SCIENCE VIDE DATED 05.02.2013, ANNEXURE-H & DIRECT THE RESPONDENTS TO REGULARISE THE PETITIONERS AS PERMANENT EMPLOYEES OF THE INSTITUTE FROM THE DATE OF THEIR INITIAL APPOINTMENT I.E., 2006 ONWARDS WITH ALL CONSEQUENTIAL BENEFITS.

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IN W.P.No.49297/2014:

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BETWEEN:

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1 . PREMAKUMAR M

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S/O M MARIGOWDA, AGED ABOUT 42 YEARS, WORKING AS TECHNICIAN, R/ATCHAMANHALLI, MADDUR TALUK, MANDYA, DISTRICT.

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2 . DEVARAJU R S/O LATE RANGAIAH, AGED ABOUT 45 YEARS, WORKING AS MODULAR CUM ARTISTS, R/ATA MARKALU VILAGE HH KOPPALA POSTS, MALAVALLI TALUK, MANDYA DISTRICT.

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3 . K HEMALATHA W/O PRAKASH P AGED ABOUT 44 YEARS,

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WORKINGAS STOREKEEPER CUM COMPUTER OPERATOR, R/AT NO.518, LOKANAYAKAN AGAR, 1^ST MAIN, 5^TH CROSS, MATAGALLI, MYSORE-16

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4 . TRIVENI N S W/O SRUESH K R AGED ABOUT 36 YEARS, WORKING AS STORE KEEPER CUM COMPUTER OPERATOR, R/AT SOORA NILAYA, BEHIND PUSHPA PANDURANGA SAMUDAYA BHAVANA, 12^TH CORSS, CHAMUNDESHWARI NAGAR, KEB COLONY, MANDYA.

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5 . JAYAMMA W/O GOINDARAJU.J AGED ABOUT 38 YEARS, CHAMUNDI BETTA, MYSORE ALL ARE WORKING AS PARA MEDICAL, MINISTERIAL STAFFS, NON TEACHING STAFFS AT MANDYA INSTITUTE OF MEDICAL SCIENCE, MANDYA

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...PETITIONERS

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(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL A/W. SRI.VINAYAKA.B., ADV. FOR P1, P3 & P4)

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AND:

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1 . THE STATE OF KARNATAKA REP BY ITS PRINCIPLE SECRETARY HEALTH AND FAMILY WELFARE (MEDICAL EDUCATION) VIDHANA SOUDHA, DR AMBEDKAR ROAD, BANGALORE-560 001

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2 . THE DIRECTOR MANDYA INSTITUTE OF MEDICAL SCIENCE,

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DISTRICT HOSPITAL CAMPUS, MANDYA-571 401

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….RESPONDENTS

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(BY SRI.SHOWRI.H.R., AGA FOR R1; SRI.R.S.RAVI, SENIOR COUNSEL A/W. SRI.D.V.NARENDRA GOWDA., ADV. FOR R2.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.09.2013, PASSED BY THE R1, i.e., PRINCIPAL SECRETARY HEALTH & FAMILY WELFARE, DEPARTMENT OF MEDICAL EDUCTION, ANNEXURE-K, BY UPHOLDING THE EARLIER ORDER DATED 14.03.2013.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 19/04/2023 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Petitioners in both the writ petitions are Group-C

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employees of the Mandya Institute of Medical Sciences and as they have prayed for identical relief based on

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common facts, both writ petitions are taken up together

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for hearing and disposed of by this common order.

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In W.P.No.49297/2014, the petitioners have

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prayed for a writ of certiorari to quash Government

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Order bearing No.DPÀÄPÀ 167 JA¦J¸ï 2012 dated 03.09.2013

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(Annexure-K) which withdrew earlier Government Order bearing No.DPÀÄPÀ 167 JA¦J¸ï 2012 dated 14.03.2013

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wherein decision was taken to regularize the services of teaching and non-teaching staff working in Group-C post of Autonomous Institutions under Medical Education Department.

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In W.P.No.19344/2014, the petitioners have

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prayed for a writ of certiorari to quash endorsement bearing No.«ÄªÀiïì/¹§âA¢(6)/8/2012-13 dated 05.02.2013 (Annexure-H) by which the petitioners’ request for regularization of their services is rejected.

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Heard the learned senior counsel Sri.Ashok Haranahalli along with Sri.Vinayaka.B., learned counsel for petitioners, learned senior counsel Sri.R.S.Ravi along with Sri.Narendra.D.V., learned counsel for respondentMandya Institute of Medical Sciences (for short ‘Institute’) and learned Additional Government Advocate

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Sri.H.R.Showri for respondent No.1-State. Perused the entire writ petition papers.

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State of Karnataka under Government Order

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No.HFW 516 MPS 2004 dated 22.01.2005 sanctioned and established six Medical Colleges at Mandya, Hassan, Shivamogga, Belagaum, Raichur and Bidar. All the Medical Colleges are funded by the State Government and are governed by their own regulations and Bye-

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laws. The petitioners were appointed to various Group-C posts in the second respondent-Institute in the year 2006

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and the recruitment was by inviting applications. The petitioners are working on consolidated salary. The employees of the Institute were governed by Mandya Institute of Medical Sciences, Mandya, Rules and Regulations, 2005 (for short 2005 Regulations) and Mandya Institute of Medical Sciences, Mandya (Pay, Recruitment, Conditions of Services and Miscellaneous Provisions) Rules, 2005 (for short 2005 Rules).

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Subsequently in the year 2013, 2005 Rules and Regulations were replaced by Mandya Institute of Medical Sciences, Mandya (Rules and Regulations), 2013 (for short 2013 Regulations) and Mandya Institute of Medical Sciences, Mandya Bye-Laws, 2013 (for short 2013 Byelaws). As the petitioners were appointed against sanctioned posts of the Institute by the Competent Authority i.e., Director and as they possessed the requisite qualification for the posts held by them, at their request the Institute forwarded the proposal for their regularization to the Government. The Government under Annexure-J took decision to regularize the services of Group-C employees of Autonomous Institutions working under the Medical Education Department as a one time measure under Government Order dated 14.03.2013 (Annexure-J) on certain conditions. It is the grievance of the petitioners that the said order to regularize Group-C non-teaching staff as a one time measure was withdrawn

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unilaterally under impugned Annexure-K, Government Order dated 03.09.2013, only on the ground that the regularization would result in financial burden on the State Government.

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Learned senior counsel for the petitioners

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would contend that the action of the first respondentState Government to withdraw the order for regularization is wholly arbitrary, unreasonable and opposed to the facts of the case on hand. It is submitted that the petitioners are working in the second respondent-Institute since establishment of the Institute against sanctioned posts and they are appointed by Competent Authority i.e., Director. Learned senior counsel invites attention of this Court to 2005 Bye-laws as well as 2013 Bye-laws and contends that for Group-C posts, Director is the Appointing Authority and Government has no role to play in the recruitment and appointment of Group-C Staff in the Institute. Learned

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senior counsel would further submit that the services of the petitioners who are working against sanctioned posts are very essential for the running of the second respondent-Institute and petitioners are shown in the report sent to the Medical Council of India (for short ‘MCI’) for obtaining recognition and approval. It is stated that the petitioners are being paid minimum of the pay scale and the contention of the State that if the services of the petitioners are regularized, there would be financial burden on the State, cannot be a reason to deny regularization of the petitioners’ services. Learned senior counsel would submit that though the State Government has financial control, it cannot come in the way of proper functioning and administration of the Institute and cannot deny the regularization of essential staff. Learned senior counsel would submit that the petitioners would fulfil the conditions or criteria as laid down by the Hon'ble Apex Court in the case of SECRETARY, STATE OF

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KARNATAKA AND OTHERS V/S. UMADEVI (3) AND

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OTHERS (2006 SCC (L&S) 753) . Since the petitioners are working for more than 10 years from the date of their initial appointment without the benefit of interim order of the Court and as their services are essential, the State rightly took decision to regularize their services under Government Order dated 14.03.2013 (Annexure-J) and

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submits that there is no reason to withdraw the said order. It is submitted that Annexure-J, Government Order makes it clear that the regularization/absorption shall be as a one time measure who possess requisite qualification; and if posts belonging to SC/ST are not filled up, to take action to fill up those posts.

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Learned senior counsel would further submit

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that the action of the State in withdrawing the decision to regularize the Group-C employees of the Institute is discriminatory, as similarly situated employees of Belagaum Institute of Medical Sciences and Kidwai

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Memorial Institute of Oncology are regularized. Thus, it is prayed for allowing the writ petitions.

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Learned Additional Government Advocate

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referring to the affidavit dated 07.12.2022 of the Secretary to Government, Medical Education

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Department submits that the power of the Director of the Institute to appoint Group-C and D posts is not absolute and is subject to final approval of the Government. Learned Additional Government Advocate invites attention of this Court to Regulation 6(3) of 2013 Regulations and submits that any matter with financial implications shall be implemented only after obtaining the approval of the Government. Learned Additional Government Advocate would also submit that Regulation 8 of 2013 Regulations empowers the State Government to issue suo motu , such directions as may be necessary or expedient in the matter of both academic and administrative functioning of the Institute in order to

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maintain standards of excellence. Learned Additional Government Advocate would submit that taking note of the financial burden on the State if the petitioners are regularized, decision was taken to withdraw the order permitting regularization. Learned Additional

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Government Advocate would then refer to Annexure-R2, the Karnataka State Civil Services (Prohibition of Absorption of the Services of the Employees of Establishments in Public Sector into Public Service) Act, 2020 (for short 2020 Act) and submits that in terms of 2020 Act, absorption or regularization is impermissible. Thus, he justifies the impugned order and prays for dismissal of the writ petitions.

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Learned senior counsel Sri.R.S.Ravi for second respondent-Institute referring to the statement of objections on behalf of the second respondentInstitute submits that the petitioners were appointed initially in the year 2006 and they are working since

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then in the second respondent-Institute. Learned senior counsel would further submit that the petitioners are working against the sanctioned posts of the Institute and the posts against which the petitioners are working are permanent posts as per the norms of MCI. Learned senior counsel referring to the memo dated 18.03.2022 would submit that the budget estimate includes the salaries of the petitioners which is approved by the first respondent-State Government. Thus, it is prayed for passing appropriate order.

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Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers,

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the only point which falls for consideration is as to,

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Whether the impugned order dated 03.09.2013 (Annexure-K) requires interference?

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The answer to the above point would be in the Affirmative for the following reasons:

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It is an admitted fact and there is no dispute with regard to working of the petitioners in the second respondent-Institute in Group-C non-teaching posts since their appointment on temporary basis in the year 2006. It is also an admitted fact that the petitioners are working against sanctioned posts and are appointed by Competent Authority i.e., Director of the second respondent-Institute. Moreover, paragraph 13 of the statement of objections filed by the second respondentInstitute makes it clear that the petitioners are working against the sanctioned posts and those posts are permanent posts as per the norms of MCI. The names of the petitioners are forwarded to the MCI against the posts in which they are working so as to obtain recognition and approval from MCI. The respondents shall keep in mind that without the services of the petitioners from 2006 onwards against the posts in which they are working, the respondents would not have got

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the much needed recognition and approval from MCI.

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There is need of petitioners’ services to the second respondent-Institute, hence their services are continued from 2006 onwards. The MCI norms require minimum teaching and non-teaching staff for approval and recognition of the Institute.

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2005 Regulations as well as 2013 Regulations and 2013 Bye-laws defines the ‘Appointing Authority’. Regulation 2(c) of 2013 Regulations defines the ‘Appointing Authority’ as follows:

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“ 2. Definitions. – (1) In these rules and regulations, unless the context otherwise requires, -

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(a) …….

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(b) …….

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(c) “Appointing Authority” means

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(1) Karnataka Government in respect of the first Dean/Director, Chief Administrative Officer, Chief Accounts Officer cum

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Financial Advisor/Accounts officer and other Gazetted officers.

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(2) Governing Council in respect of the subsequent Dean/Director, Principal, Medical Superintendents, Group A & B posts and other equivalent posts.

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(3) Dean and Director of the Institute for all Group ‘C’ and ‘D’ posts.”

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Bye-law 2(b) of 2013 Bye-laws defines the

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‘Appointing Authority’ as follows:

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“ 2. Definitions. – (1) In these Bye-laws unless the context otherwise requires, -

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(a) …….

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(b) “Appointing Authority” means

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(1) Karnataka Government in respect of the first Dean/Director, Chief Administrative Officer, Chief Accounts Officer cum Financial Advisor/Accounts officer and other Gazetted officers.

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(2) Vice-Chairman of the Governing Council in respect of the subsequent Dean/Director, Vice Dean, Medical Superintendents, Group A & B posts and other equivalent posts.

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(3) Dean and Director of the Institute for all Group ‘C’ and ‘D’ posts.”

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Annexure-1 to Rule 9 of 2013 Regulations

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provides for delegation of administration and financial

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powers to the Dean and Director. Clause 38 reads as

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follows:

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38. Filling up of Vacancies	1. Temporary & Adhoc appointments to Class “C” & “D” posts	Full powers upto 6 months or as per the delegation of the powers by the Governing Council
	2. To fill up all Class “C”&“D”posts	Full powers

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The above extracted Regulations and Bye-

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laws of the Institute makes it abundantly clear that for all Group-C and D posts, Director is the Appointing Authority. In other words, the Director is empowered to

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make appointments to Group-C and D posts and full financial power is delegated to the Director in terms of Clause 38 of Annexure-1 to 2013 Regulations. The Director shall follow the procedure prescribed under the Regulations for making appointment to the Group-C and D posts in terms of Bye-law 11 and 12 of 2013 Byelaws. As the Director is empowered to appoint Group-C and D posts under 2013 Bye-laws as well as 2005 Regulations, the contention of the first respondentGovernment that the power of the Director to appoint Group-C and D posts is not absolute and is subject to the financial approval of the Government is meritless. No doubt, the first respondent-Government has power under Regulation 8 to issue directions as may be necessary or expedient in the matter of both academic and administrative functioning of the Institute in order to ensure standards of excellence and to protect the property and finance of the Institute. It is also true that

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under Regulation 6(3) any matter with financial implication shall be implemented only after obtaining the approval of the Government. But, the Government’s power to issue direction and to implement decision having financial implication on obtaining approval of the Government shall be in the interest of the Institute and to ensure and maintain standards of excellence both in administration and academic matters. When the petitioners’ services are necessary and essential for proper functioning of the Institute and for obtaining recognition and approval of MCI, only on the ground that regularization of petitioners’ services would have financial implication, the first respondent-State Government could not have passed impugned order withdrawing the decision to regularize the services of the petitioners. The first respondent – Government shall have to keep in mind the interest of both the Institute and petitioners. The second respondent-Institute is an essential service Health

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Institute and established with an object of providing health services at the district level. When the second respondent-Institute is established with a laudable object of providing medical and health services apart from medical education to the needy students, the financial constraint should not come in the way of proper administration of the Institute. Good service and work could be expected from employees when they are made to work in a good atmosphere and when their employment is secured. When an employee is made to work with a hanging sword of temporary status, the Institute cannot expect good service from such an employee.

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A perusal of impugned Government Order dated 03.09.2013 (Annexure-K) discloses that decision to withdraw Government Order dated 14.03.2013, (Annexure-J) wherein the Government had taken decision to regularize the Group-C non-teaching staff of

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the Institute, is on the opinion of the Department of Personal and Administrative Reforms (for short DPAR) as well as from the Finance Department. From a reading of the impugned order, it is seen that DPAR had opinion that if the posts are not filled up for non-availability of reserved candidates, such posts shall be carried forward and shall be filled up as backlog. Further, it states that there is no provision for regularization and Finance Department would not approve regularization of such temporary employees. As stated above, only financial constraint cannot be a ground to deny regularization to the persons who are appointed against sanctioned posts and the Government while taking decision to regularize under Annexure-K had taken care to see that such regularization would not violate or contrary to the roster or reservation by imposing certain conditions which reads as follows:

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“ 1. SÁAiÀÄAUÉÆ¼ÀÄîªÀ £ËPÀgÀgÀÄ ªÀÄAdÆgÁVgÀÄªÀ ¸ÀªÀÄÆºÀ-¹ ªÀÈAzÀzÀ ¨ÉÆÃzsÀPÉÃvÀgÀ ºÀÄzÉÝUÀ¼À°è UÀÄwÛUÉ DzsÁgÀzÀ ªÉÄÃ¯É PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛgÀvÀPÀÌzÀÄÝ.

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«zÁåºÀðvÉAiÀÄ£ÀÄß ºÉÆA¢gÀvÀPÀÌzÀÄÝ.

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UÀÄwÛUÉ DzsÁgÀzÀ ªÉÄÃ¯É PÀ¤µÀÖ MAzÀÄ ªÀµÀð

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¸ÉÃªÉ ¸À°è¹gÀvÀPÀÌzÀÄÝ.

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¸ÀzÀj ¥ÀæQæAiÉÄAiÀÄ°è ¨sÀwðAiÀiÁUÀzÉÃ G½AiÀÄÄªÀ ¥Àj²µÀÖ eÁw/¥Àj²µÀÖ ¥ÀAUÀqÀUÀ½UÉ «ÄÃ¸À¯ÁVgÀÄªÀ ºÀÄzÉÝUÀ¼À£ÀÄß ¤AiÀÄªÀiÁ£ÀÄ¸ÁgÀ vÀPÀët ¸ÀÄA§®Ä PÀæªÀÄ dgÀÄV¸ÀvÀPÀÌzÀÄÝ.

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UÀÄwÛUÉ DzsÁgÀzÀ £ËPÀgÀgÀ£ÀÄß ªÀÄAdÆgÁzÀ ºÀÄzÉÝUÀ¼À°è ªÀiÁvÀæ «ÄÃ¸À¯Áw C£ÀÄ¸Àj¹ SÁAiÀÄAUÉÆ½¸ÀvÀPÀÌzÀÄÝ.

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ªÀAiÉÆÃ«ÄwAiÉÆ¼ÀVgÀvÀPÀÌzÀÄÝ. ”

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It is not the case of the first or second

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respondent that the services of the petitioners are not necessary or that they are not appointed against

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sanctioned posts or appointment is by incompetent Authority or that they are excess staff. When the petitioners possess requisite qualification for the post held by them; when they are appointed against sanctioned posts and appointed by Competent Authority

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and continued for more than 15 years, without any interim order of the Court, the petitioners would be entitled for regularization in terms of UMADEVI’S case supra.

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Para 53 of UMADEVI’S case reads as follows:

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“ 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore vs. S.V. Narayanappa [(1967) 1 SCR 128: AIR 1967 SC 1071], R.N. Nanjundappa vs. T.Thimmaiah [(1972) 1 SCC 409: and B.N. Nagarajan vs. State of Karnataka [(1979) 4 SCC 507: 1980 SCC (L&S) 4 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have

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continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”

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The above makes it clear that to become eligible for regularization, the employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal. The State Government or Appointing Authority should have employed the employee and continued in service voluntarily and continuously for more than 10 years and the appointment of such employee should not be illegal, even if irregular.

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In the instant case, the petitioners fulfil all

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the above criteria and rightly the State Government had taken decision to regularize them.

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The Hon'ble Apex Court in NARENDRA

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KUMAR TIWARI AND OTHERS V/S. STATE OF JHARKHAND AND OTHERS [(2018) 8 SCC 238] held

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that in the matter of regularization, the entire issue is to

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be considered in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. The petitioners in NARENDRA KUMAR TIWARI (supra) were denied the benefit of Regularization Rules of Jharkhand State on the ground that they had not put in 10 years of service as on the cut-off date of 10.04.2006 i.e., the date of judgment of UMADEVI’S case. It was contended that the State of Jharkhand was established in the year 2000 and as such the question of petitioners therein completing 10 years of service as on the date of UMADEVI’S case would not arise and it was further contended that the decision in UMADEVI (3) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointed daily wage workers and continuing with them indefinitely. The Hon'ble Apex Court in NARENDRA

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KUMAR TIWARI case (supra) following the decision in UMADEVI’S case as well as STATE OF KARNATAKA AND OTHERS V/S. M.L.KESARI AND OTHERS

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[(2010) 9 SCC 247] , at paragraphs 7, 8 and 9, held as follows:

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“ 7. The purpose and intent of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753] was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753] is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by

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placing the sword of Damocles over their head. This is precisely what Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753] and Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247: (2010) 2 SCC (L&S) 826] sought to avoid.

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8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1: 2006 SCC (L&S) 753], is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.

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9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise — the interest of the

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employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.”

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The Hon’ble Apex Court in the above decision explained

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the purpose and intent of the decision in UMADEVI (3) and M.L.KESARI (supra) and also held that the State while considering regularization shall keep in mind the interest of the employees apart from the interest of the State, financial or otherwise.

¶180

In the case on hand, the Institute was established in the year 2005 and petitioners were appointed in the year 2006 against sanctioned posts. The petitioners are continued till date, as their services are necessary and essential. On the ground of financial burden, the petitioners cannot be denied regularization, when they are working against sanctioned posts and

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fulfil the criteria laid down by the Hon'ble Apex Court in UMADEVI’S case. Continuing the petitioners on contractual or temporary basis, in the facts and circumstances of the present case would amount to exploitation. Moreover, the petitioners admittedly are working against the sanctioned posts (paragraph – 13 of statement of objections of respondent No.2). Normally posts would be created and sanctioned taking into consideration need, necessity, financial implication and on obtaining approval from the Finance Department. Therefore, when the petitioners are working against sanctioned posts, the Government raising objection for regularization of petitioners’ service on the ground of financial implication is wholly unreasonable and unfair.

¶183

The second respondent-Institute is established

¶184

along with other five Institutes under Government Order dated 22.01.2005. Group-C staff of Belgaum Institute of Medical Sciences who were similarly situated like

¶185

¶186

petitioners were regularized. The petitioners would be entitled for similar treatment since all the Institutes are established under Government Order dated 22.01.2005 and all the Institutes are funded by the Government. The Government shall not discriminate the employees of similarly situated Institutes.

¶187

Learned Additional Government Advocate lastly contended that absorption or regularization is impermissible in view of 2020 Act. A perusal of 2020 Act would indicate that the Act was promulgated to provide for prohibition of absorption of the services of the employees of establishments in public sector into post in the various departments of Government or Civil Services. The Act defines “establishment in public sector” and also “public service”. The regularization or absorption of services of the petitioners herein is not into public service as defined under the 2020 Act. The regularization or absorption of petitioners

¶188

¶189

is into second respondent-Institute. The 2020 Act

¶190

prohibits absorption of the services of the employees of establishments in public sector into post in the departments of Government or civil services. But, the petitioners’ regularization is not to the posts in any of the Departments of Government or civil services.

¶191

For the reasons recorded above, the

¶192

following:

¶193

ORDER

¶194

(1) Writ petitions are allowed.

¶195

(2) Government Order bearing No.DPÀÄPÀ 167

¶196

JA¦J¸ï 2012 dated 03.09.2013

¶197

(Annexure-K) in W.P.No.49297/2014 and endorsement bearing No.«ÄªÀiïì/¹§âA¢(6)/8/2012-13 dated

¶198

¶199

05.02.2013 (Annexure-H) in W.P.No.19344/2014 are quashed.

¶200

(3) First and second respondents are directed to give effect to the Government Order bearing No.DPÀÄPÀ 167 JA¦J¸ï 2012 dated 14.03.2013 (Annexure-J) in both the writ petitions.

¶201

Sd/JUDGE

¶202

NC.

G Sandhya v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

G Sandhya v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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