H.P.Basavaraju v. State of Karnataka

(By Sri. Jagadeesh Mundaragi, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA WITH A PJAYER TO DIRECT THE R2 TO R4 TO IMPLEMENT THE ORDER PASSED BY THIS HON’BLE COURT DATED 06.03.2006 IN WP NO.44242/-1 (L-TER) & TO PAY PAY FOR EQUAL WORK WITH CONTINUITY OF SERVICE VIDE ANN-B. EQUAL THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: ORDER Heard Sri. Girigowda learned counsel appearing on behalf of Sri.M.B.Chandrachooda, for petitioner and Sri .Jagadeesh Mundaragi, learned Additional Government Advocate appearing respondents. Perused the impugned records.

2. Petitioner is seeking for issue of writ of mandamus to direct respondents No.2 4 implement the order passed by this Court

06.03.2006 in W.P.No.44245/2001 at Annexure-B and to pay equal pay for equal work with continuity of service; Direction to respondents No.2 to 4 to regularize ‘a 3 the service of petitioner as Group-D and pay all consequential benefits attached to the post.

3. Facts In brief leading to filing of this writ petition are as under:

4. Petitioner sought for a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 and the appropriate Government by order dated 14.08.1996 made a reference to the jurisdictional Labour Court to adjudicate as to whether there has been Illegal retrenchment of petitioner by respondent. Reference came to be allowed In part In Reference No.69/1996 dated 04.04.2001 by directing respondent to pay a compensation of? 20,000/- In Hen of reinstatement. Aggrieved by said award petitioner herein filed writ petition No.44242/200 1 before this Court which came to be allowed by order dated 06. 03.2006 dIrecting respondent to reinstate the petitioner with continuity of service In any other equivalent position In any other department of the respondent. Respondent questioned the said order before Division Bench of this Court In W.A.No. 1322/2006 and an order of dismissal came to V 4 passed

08.02.2007 per Annexure-C. Respondent State perused the grievance before the Honbie Apex Court in SLP No.9917/2008 which came to be disposed off by holding that workman would not be entitled to any backwages and order of the learned Single Judge came to be affirmed.

5. It is the contention of the learned counsel for petitioner subsequent to the order of dismissal of SLP by the Honbie Apex Court on 16.12.2009 petitioner has been reinstated into service by the respondents and he is being paid daily wages as being paid to the employees who have been employed recently. It is contended that Group-D employees are drawing salary more than 9,000/- and as such petitioner gave a representation on ) 7.11.201 l Annexure-E for payment of same salary as that has being paid to Group-D employees and no action was taken on the said representation. As such he seeks for payment of equal pay for equal work with continuity of service. He also submits that even though petitioner has been working since 25 years his services have not been regularized and as such he seeks for regularization of his employment with the respondent.

6. Per contra, Sri.Jagadeesh Mundaragi, learned Additional Government Advocate would submit that petitioner has an alternate remedy available under the Industrial Disputes Act, 1947 for redressal of his grievance if any in so far as the first prayer concerned. He would also contend that question of regularizing the services of petitioner is concerned same does not arise since Hon’ble Apex Court has held in the guise of regularizing the service back door entry should not be permitted and as such regularizing the services of petitioner does not arise since he was not appointed against any sanctioned post and on the date of his appointment made it was not in accordance with law viz., as per recruitment Rules as it was prevailing then and as such he seeks for dismissal of the writ petition.

7. In so far as the first prayer is concerned it is noticed that at the first instance Labour Court in the award passed on 04.04.2001 in Reference No.69/2006 rejected the claim of the petitioner for reinstatement and 6 In the writ petition ified by the workman respondent was directed to reinstate the petitioner by extending continuity of service. Order passed by this Court reads as under: ‘The respondent is directed to reinstate the petitioner with continuity of service, if not In the position he was engaged earlier, In any any other other equivalent position In department of the respondent”

8. ThIs order has admittedly reached finality. The award of the Labour Court has merged with the order passed by this Court. In that view of the matter if there Is non Implementation of the award, remedy Is available to the petitioner under Section 29 of the Industrial Disputes Act and petitioner cannot be allowed to invoke writ jurisdiction. Hence, on the ground of petitioner having alternate and efficacious remedy available under law, first prayer sought for In this writ petition Is rejected. 4

9. In so far as second prayer Is concerned It relates to regularlzation of service. As rightly contended 4—. 7 by Additional Government Advocate Hon’ble Apex Court in catena of citations has held that an appointment made either temporarily, contractual, casual or as daily- wages or as employment who have been appointed or recruited dehors the strength in public employment, issuance of direction by the Court regularize would be impermissible. One such decision is in the case of State of Rajasthan and others vs. Daya Lal and others reported in 2011(2) SCC 429 wherein it has been held as under: directions absorption the outset

12. We may at to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals: (i) The High Courts, in exercising power under Article 226 of the Constitution regularisation. permanent continuance, unless employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not regularisation employee which would be violative of scheme. While something that is irregular for want of a direction services constitutional against (ii) Mere continuation of 8 compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, entries, appointments constitutional and/or appointment of ineligible candidates cannot be regularised. contrary scheme service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be ‘litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle employee regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order or regularisation in the absence of a legal right. Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates. Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There absorption, regularisation direction cannot a (iii) (iv) 9 permanent continuance of part-time temporary employees.t’

10. Yet again Honbie Apex Court In the case of Union of India and others vs. Vartak Labour Union (2) reported in 2011 (4) SCC 200 has taken Into consideration its earlier judgment in the case of State of Karnataka Vs. Umadevl (3) to reject the claim of the employees for being regularised. In the facts on hand the material produced by the petitioner does not reveal that petitioner was appointed against any sanctioned post. There is no whisper that petitioner was appointed agalsnt sanctioned post or as per recruitment Rules and Regulations that was prevailing as on the date of his appointment. In this factual matrix the claim of the petitioner regularize his services cannot be considered, as it would amount to an alternate source of employment by back door entry. In that view of the matter there is no merit in the writ petition and It stands dismissed as devoid of merits. Sd/a JUDGE DR