A.M. DINA v. STATE OF KARNATAKA

Judgment

3. STATE OF KARNATAKA EDUCATION DEPARTMENT M.S. BUILDING DR. B.R. AMBEDKAR ROAD BANGALORE-01. THE COMMISSIONER PRE-UNIVERSITY EDUCATION DEPARTMENT 18TH CROSS, MALLESHWARAM BANGALORE-03. THE DIRECTOR PRE-UNIVERSITY EDUCATION DEPARTMENT 18TH CROSS 2 MALLESHWARAM BANGALORE-03.

5. CAUVERY EDUCATION SOCIETY (R) REPT BY THE PRESIDENT VIDAYANAGARE GONNIKOPPAL-571 213. KODAGU DISTRICT. CAUVERY PRE UNIVERSITY COLLEGE VIRAJPET, KODAGU DISTRICT BY ITS PRINCIPAL. …RESPONDENTS

(BY SRI. REUBEN JACOB, SENIOR ADVOCATE FOR SRI. HARISHA .A.S, AGA FOR R1 TO R3; R4 - SERVED, R5 - SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO REGULARIZE THE SERVICE OF THE PETTIONER UPON COMPLETION OF 10 YEARS OF CONTINUOUS SERVICE AND DIRECT THE RESPONDENTS TO GRANT SERVICE WEIGHTAGE IN ACCORDANCE WITH THE JUDGMENT RENDERED BY THIS HON'BLE COURT IN W.P. NO.21165/1992 DISPOSED ON 28.09.1994 AND ALSO AS PER THE JUDGMENT OF THE HON'BLE SUPREMEN COURT IN (20010) SCC 179 AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 20.08.2024, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM 3 C.A.V. ORDER The captioned petition is filed seeking the following reliefs: "(i) Issue a writ of mandamus directing the respondents to regularize the service of petitioner upon completion of 10 years of continuous service and direct the respondents to grant service weightage in accordance with the judgment rendered this Hon'ble Court in W.P.No.21165/1992 disposed on 28.09.1994 and also as per the judgment of the Hon'ble Supreme Court in (2010) SCC 179; (ii) Direct the respondents to grant the full salary attached to the post and petitioner shall be paid equal pay to equal work in accordance with Article 39-D of the constitution of India and as per the judgment of the Hon'ble Supreme Court in AIR 1994 SC 264 and (2010) 7 SCC 739; (iii) Issue any other writ order or direction as this Hon'ble Court decors fit in the circumstances of the case in the interest of justice and equity." 4

2. The facts leading to the case are as under: The respondent No.4 appointed the petitioner as a Lecturer in English on temporary basis on 15.06.1999. Respondent No.4 notified and invited applications from eligible candidates to the vacant post of Lecturer in English reserved for GM category. Pursuant to notification dated

05.07.2013, petitioner applied to the post of Lecturer in English. Respondent No.4 though initiated recruitment process, did not proceed with the recruitment and petitioner having rendered 15 years of service made a request to the management to regularize her service. Respondent No.4 citing the judgment rendered by the Hon'ble Apex Court prepared a list and sent it to respondent No.1 and petitioner's name was included in the list against vacant post of English Lecturer in respondent No.4/Institution and respondent No.5. The respondent No.4 also issued a service certificate in favour of petitioner stating that she has rendered her service in the institution from 21.06.1999 5 till the date of issuance of certificate. Petitioner is also placing reliance on the recommendation made by the respondent No.3 addressed to the respondent No.1 to approve the post of Lecturers who have rendered service for more than 10 years. The present petition is filed feeling aggrieved by the inaction on the part of the respondents in not regularizing the petitioner's service.

3. Learned Senior Counsel appearing petition reiterating the grounds urged in the petition has placed reliance on the recommendation made by the respondent No.3 which is evidenced at Annexure-F. Citing the length of service rendered by the petitioner as English Lecturer, he would point out that petitioner is entitled for regularization of service to the vacant post. Learned Senior Counsel has brought to the notice of this Court that petitioner belongs to general category and as per the roster system, the post of Lecturer in English in the respondent No.5/college was rightly notified for GM category and 6 therefore, he would contend that respondents are bound to regularize the petitioner's temporary service. Citing the judgment rendered by the Hon'ble Apex Court in AIR 1993 SC 264, it is argued that petitioner is entitled for full salary on par with regular employees.

4. While reiterating the grounds, learned Senior Counsel has placed reliance on the following judgments to substantiate petitioner's right to seek regularization: 1) G.R.Vyjayanthi vs. State Karnataka - W.P.No.21165/1992; 2) Poornima Bocheer K.C. vs. State of Karnataka & Others - W.P.No.23300/2013; 3) Secretary, State of Karnataka and Others vs. Uma Devi and Others - Appeal (Civil) No.3595-3612/1999; 4) Satya Prakash vs. State of Bihar - Civil Appeal No.2440/2010.

5. Learned Senior Counsel would point out that petitioner has rendered service since 1999 and having 7 regard to the age of the petitioner who was aged 42 years as on the date of filing of the petition, petitioner having worked for almost 26 years, she has made out a case for regularization of her service. Citing the recommendation made by the Joint Director which is evidenced at Annexure- F, he has vehemently argued that petitioner is entitled to get benefit of regularization as she was appointed against sanctioned post and she possessed all requisite qualification to be considered to the post of English Lecturer.

6. Per contra, learned Additional Advocate General reiterating the stand taken in the statement of objections has however, vehemently argued and contested the petition. Learned AAG referring to the records would point that petitioner was appointed by respondent No.5/institution in a grant-in-aid college. Citing Annexure-F, he would point out that recommendation was to admit to grant-in-aid and not to regularize petitioner's service. In grant-in-aid institution, petitioner is just an 8 employee of respondent No.5/institution and therefore, the dictum laid down by the Hon'ble Apex Court in Umadevi's case (supra) is not at all applicable to the present case on hand. Therefore, he would contend that the prayer sought in the instant petition cannot be considered since petitioner is not entitled to seek regularization.

7. Referring the Karnataka Educational Institutions (Absorption of persons working as part time Lecturers in the Aided Private Educational Institutions) (Special) Rules, 2010 (for short 'the 2010 Rules'), it is also vehemently argued that institution is admitted to grant-in- aid and therefore, college had no locus to unilaterally appoint petitioner without consultation and prior approval from the competent authority. Though petitioner was appointed, same was not sent for approval and therefore, he would contend that no indulgence can be granted in the present case on hand. 9

8. Heard learned Senior Counsel appearing for the petitioner and learned AAG. Perused the records.

9. The petitioner’s case is grounded in the fact that she has been continuously serving as a Lecturer in English since 1999 on a temporary basis, fulfilling the duties of a sanctioned post. Although her appointment was initially made without regularization, the fact that she has worked for more than 26 years at the respondent institution gives rise to her legitimate expectation of stable employment. This expectation further strengthened by recommendation from respondent No.3, as seen Annexure-F, which highlights that the petitioner has served for more than two decades in a full-time capacity against a sanctioned post. Given that the petitioner has reached an age where she is no longer eligible for fresh recruitment (she was 42 years old at the time of filing the petition), her claim for absorption in a permanent capacity becomes more compelling. 10

10. It is important to consider the legal framework surrounding the petitioner's request. While the learned Additional Advocate General (AAG) has argued that the petitioner cannot seek regularization because she is an employee of a grant-in-aid institution, this argument overlooks the fact that she has served in a full-time role against a sanctioned vacancy. The Karnataka Educational Institutions (Absorption of persons working as part-time Lecturers in the Aided Private Educational Institutions) (Special) Rules, 2010, provides a legal basis for the absorption of employees who have served for an extended period. This rule can be seen as a mechanism to address cases like the petitioner’s, where the employee’s long tenure and service in a sanctioned post justify the need for absorption into a permanent role, even if regularization may not strictly apply under the circumstances of a grant- in-aid institution. 11

11. The petitioner’s case also finds strong support in judicial precedent. The Supreme Court, in the landmark judgment in Secretary, State of Karnataka & Others v. Uma Devi & Others1, set out guidelines for regularizing employees who have served for long periods under sanctioned posts. In Uma Devi's (supra) case, the Court held that while public employment should generally be secured through proper recruitment channels, an exception can be made in cases where employees have worked for several years in sanctioned posts. The Court acknowledged that in such cases, the state is under a moral and legal obligation to regularize the services of those employees, provided they meet the requisite qualifications and the appointment was not made in contravention of statutory rules.

12. In the present case, the petitioner’s appointment was made against a vacant sanctioned post, and she 1 (2006) 4 SCC 1 12 possesses the necessary qualifications to hold the position of Lecturer in English. Moreover, the recommendation made by respondent No.3 confirms her eligibility for absorption. The facts of the case align with the principles laid down in Uma Devi (supra), which allows for the absorption of employees who have rendered long service under sanctioned posts. Therefore, while the petitioner may not be entitled to outright regularization due to the nature of the institution being a grant-in-aid college, she has acquired a legal right to be considered for absorption based on the length of her service and the nature of her appointment.

13. In conclusion, the petitioner’s case is not one of mere contractual or temporary employment but of long, dedicated service in a sanctioned post that has remained vacant. The principles laid down by the Supreme Court in Uma Devi (supra) provide a strong foundation for her claim to absorption, especially when viewed in conjunction 13 with the recommendation by respondent No.3 and the applicable rules under the 2010 Karnataka Educational Institutions framework. Therefore, the petitioner’s request for absorption into a permanent role is justifiable, and the respondents are bound to consider her claim in the light of these legal and factual circumstances.

14. For the foregoing reasons, this Court proceeds to pass the following: ORDER (i) The writ petition is allowed; (ii) The respondents are directed to take into consideration the service certificate issued to the petitioner, as per Annexure-B, recommendation made by respondent No.3, as evidenced vide Annexure-F. The respondents shall consider the petitioner for absorption into a permanent position in accordance with applicable laws and regulations; 14 (iii) The entire exercise of considering the petitioner for absorption shall be completed within a period of three months from the date of receipt of a certified copy of this order; (iv) Pending I.As., if any, stand disposed of. SD/- (SACHIN SHANKAR MAGADUM) JUDGE CA