SHRIKANTH S/O JALEENDRA MANE vs. THE UNION AND ORS

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 07TH DAY OF OCTOBER, 2020 BEFORE THE HON’BLE MR. JUSTICE E.S. INDIRESH WRIT PETITION NO.200760 OF 2017 (S-RES) c/w WRIT PETITION NO.201227 OF 2015 In WP No.200760 OF 2017 Between: Shrikanth S/o Jaleendra Mane Plot No.165 Biddapur Colony Near Hanuman Temple GDA Quarters Kalaburagi ...Petitioner (by Shri P Vilaskumar Marthand Rao, Advocate) And: 1. The Union of India Through Principal Secretary Department of Finance Parliament of India New Delhi – 110 001 2. The Principal

2 Chief Commissioner of Income Tax Central Revenue Building Queens Road Bangalore – 560 001 3. The Director of Income Tax (Investigation) Central Revenue Building Queens Road Bangalore – 560 001 4. The Deputy Commissioner of Income Tax (Hqrs) (Admn) for Principal Chief Commissioner of Income Tax Karnataka and Goa Bengaluru – 560 001 5. The Assistant Director of Income Tax (Investigation) Kalaburagi – 585 101 …Respondents (by Smt. Hema L. K, Advocate for R2 to R5) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to issue writ of mandamus directing the respondents to regularize the service of petitioner with retrospective date i.e. from August 2000 with full backwages and all other consequential benefits; and etc. In WPs No.201227-228 of 2015 Between: 1. Trimurthy S/o Sharanappa Koganoor Age 34 years Occ: Attender R/o H. No.63, Rajrajeshwari Nagar Kotnoor-D

3 Taluk and District: Kalaburagi 2. Laxman S/o Siddappa Hipparagi Age 34 years Occ: Attender R/o Rajrajeshwari Nagar Kotnoor-D Taluk and District: Kalaburagi ...Petitioners (by Shri P Vilaskumar Marthand Rao, Advocate) And: 1. The Union of India Through Principal Secretary Department of Finance Parliament of India New Delhi – 110 001 2. Chief Commissioner of Income Tax Central Revenue Building Queens Road Bangalore – 560 001 3. The Director of Income Tax (Investigation) Central Revenue Building Queens Road Bangalore – 560 001 4. The Commissioner of Income Tax Sedam Road Kalaburagi – 585 101 5. The Joint Commissioner of Income Tax Sedam Road Kalaburagi – 585 101

4 6. The Deputy Commissioner of Income Tax Sedam Road Kalaburagi – 585 101 …Respondents (by Shri J.K. Bukka, Advocate for R1; Smt. Hema L. Kulkarni, Advocate for R2 to R6) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to issue writ of mandamus directing the respondents to regularize the service of petitioners from the date of their initial appointment 16.02.1998 and 16.02.2000 respectively; and etc.

These petitions coming on for further hearing, this day, the Court made the following:- ORDER Petitioners in these petitions are seeking regularisation of their services on par with similarly situated persons, whose services came to be regularised by the respondent-authorities. 2. It is the case of the petitioner in Writ Petition No.200760 of 2017 that the respondent No.4-Deputy Director, Income-tax (Investigation), at Kalaburagi engaged the services of the petitioner as Driver-cum-peon in the year 2000; and the services of petitioners in Writ

5 Petitions No.201227 and 201228 of 2015 were engaged as Attenders on 16th February 1998 and 16th February, 2000 respectively in the Office of the respondent No.4-Authority. 3. It is averred by the petitioner in writ petition No.220760 of 2017 that though respondent-authorities have the practice of appointing persons as Driver-cum- peon / attenders / casual labourers in the sanctioned post, however, the case of petitioners have not been considered for regularisation; It is further averred that the petitioner has been appointed regularly without any break since inception of the respondent’s office and by anticipating and believing that his services also would be regularised on par with the other employees who were similarly appointed pursuant to the regularisation of contingent employees, the petitioner has made representation to the respondent- authorities and sought to consider the services rendered by him for more than a decade, for regularisation. It is also stated in the writ petition that the petitioner has approached this Court in Writ Petition No.84948 of 2011

6 and sought for regularisation of his services with retrospective effect from the date of his inception in the respondente-authority with full backwages and all other consequential benefits. This Court, by order dated 19th January, 2015 directed the respondents to pass appropriate orders, more particularly, keeping in view the internal communication dated 15th November, 2007 (Annexure-D), and also a direction was issued to the respondent-authorities to comply with the order at the earliest. Despite issuance of direction, the respondent- authorities having not taken any action to consider the case of the petitioner for regularisation of services on par with others, and as such, the petitioner made a representation dated 28th September, 2015, requesting the authorities to consider his case for regularisation. 4. The respondent No.4, by the impugned order dated 23rd November, 2015 produced at Annexure-A, has rejected the claim made by the petitioner for regularisation on the ground that as per law declared by the Hon'ble

7 Supreme Court in the case of SECRETRARY, STATE OF KARNATAKA AND OTHERS v. UMADEVI AND OTHERS reported in (2006)4 SCC 1, the persons who have put in more than ten years of continuous service as on 10th April, 2006, their cases have to be considered for regularisation and accordingly, rejected the claim made by the petitioner by the impugned order dated 23rd November, 2015 (Annexure-A). Being aggrieved by the order impugned, the petitioner has preferred Writ Petition No.220760 of 2017 and sought for writ of mandamus directing the respondents to regularise his services from retrospective date, i.e. from August, 2000 with full back wages and all other consequential benefits. 5. Petitioners in Writ Petitions No.201227-228 of 2015 state that they were appointed as Attenders by respondent No.4 on 16th February 1998 and 16th February 2000 respectively and their appointments were made against existing permanent vacancy. It is further stated that the services of eleven employees who were similarly

8 situated like that of the petitioners have been regualrised by the respondents and the case of the petitioners have not been considered for regularisation. Hence, they have preferred these writ petitions seeking regularisation of their services on par with similarly situated persons whose services had been regularised. 6. Shri P. Vilaskumar, learned counsel appearing for the petitioners vehemently contended that the petitioner in Writ Petition No.200760 of 2017 has been working in the respondent-authorities since August, 2000 as Driver-cum-peon and the petitioners in Writ Petition No.201227-228 of 2015 have been working since February 1998 and February 2000 respectively, as Attenders and their services have been continued without any break by the respondent-authorities. He further contended that continuance of the petitioners services in the said office would clearly indicate the fact that their services in the office of the respondent-authorities is indispensable and hence, the impugned order at Annexure-A passed by the

9 authorities is contrary to Article 14 and 16 of the Constitution of India on the ground that similarly placed persons had been given relief by the authorities, however, the same analogy has not been extended to the petitioners. He contended that the ground for rejection of the case of the petitioners that as on the date of order passed by the Hon'ble Supreme Court in the case of UMADEVI (supra) the petitioners have not put in requisite service of ten years as reflected in the impugned order, is bad in law and as such, he submitted that the impugned order at Annexure-A passed by the respondent-authorities is without application of mind and without considering the spirit behind the law declared by the Hon'ble Supreme Court at paragraph 53 of the Judgment in the said case. He further contended that the Hon'ble Supreme Court in the case of NIHAL SINGH AND OTHERS v. STATE OF PUNJAB AND OTHERS reported in 2013(139) FLR 309, has held that utilization of services of large number of people for decades despite there is no sanction post to absorb them, amounts to violation of Article 14 of the Constitution

10 of India and as such, he pressed into service paragraphs 21 and 33 of the aforesaid judgment. 7. Shri Vilaskumar, further contended that pursuant to the judgment passed by the Hon'ble Supreme Court in the case of UMADEVI (supra), the Hon'ble Supreme Court in the case of STATE OF KARNATAKA AND OTHERS v. M.L. KESARI AND OTHERS reported in AIR 2010 SC 2587 has held that, the persons, who had worked for more than ten years without break or under interim order from Courts or Tribunal in vacant post possessing requisite qualification, were entitled to be considered for regularisation. It is his further submission that the respondent-Authority being an instrumentality of the State under Article 12 of the Constitution of India, while making any appointments to the post, are required to follow the relevant rules of their establishment or the judgments or the law declared by the Hon'ble Supreme Court in various judgments for regularisation of such employees and accordingly, he submitted that rejection of the claim of

11 petitioners is in violation of the object behind the direction issued by the Hon'ble Supreme Court in the case of UMADEVI as also in the case of M.L. KESARI (supra) and accordingly, he sought for interference of this Court to issue a positive direction to the authorities to consider the case of the petitioners for regularisation on the ground that the petitioners services had been utilised by the respondent-authorities as against the sanctioned post without any break and the petitioners have continued to render their services with an ambition that their services would be regularised by the authorities in a later stage, and accordingly, he prays for allowing the writ petitions. He further contended that even today there are vacancies in the respondent-authorities and despite the same, rejection of claim made by the petitioners is contrary to Article 14, 21 and 23 of the Constitution of India. He further contended that continuing the services of petitioners without considering their case for regularisation amounts to exploiting them and the modus operandi of the respondent-authorities in engaging the services of the

12 persons like petitioners against the permanent vacancy and branding them as contract/temporary/consolidated or daily-wage employees or with a sole intention of de-hiring them at their whims and fancies, amounts to abusing of constitutional morality and as such, he prays for allowing these petitions. 8. Per contra, Smt. Hema L. Kulkarni, learned counsel appearing for the contesting respondents submitted that considering the case of the petitioners for regularisation at this stage amounts to violation of law declared by the Hon'ble Supreme Court in the case of UMADEVI. She further submitted that there was no regular post of “Driver-cum-peon” in the year 2000 in the respondent-authority and the petitioner in Writ Petition No.220760 of 2017 was appointed purely on contingent basis as per the Regulation of Contingent Employees and as such, the claim of being recruited as against regular vacancy, as submitted by the learned counsel for the petitioner, is far from truth. She further submitted the

13 petitioners in Writ Petition No.201227-228 of 2015 were appointed through out-sourcing agency and the payment was made to them through Out-sourcing Agency itself. She further submitted that engagement of casual employees is made only for the work which are casual or seasonal or intermittent in nature and at the time of appointing these petitioners, there were no relevant Rules as well as no interview was conducted while engaging the services of the petitioners. As regards submissions made by the learned counsel for the petitioners with regard to the appointment on contingent basis is concerned, she submitted that there is no provision for regularisation of casual employees on completion of five or ten years on contingent basis as per the Recruitment Rules. She submitted the eleven employees who services were regularised, as claimed by the petitioners, was in accordance with the law declared by the Hon'ble Supreme Court in the case of UMADEVI (supra), as they had completed ten years of service as on the date of judgment passed by the Hon'ble Supreme Court in the said case and

14 accordingly, the claim made by the petitioners was rejected and the same is in accordance with law and as such, she submitted that the writ petitions are devoid of merits and are liable to be dismissed. She further submitted that in an identical situation, the Division Bench of this Court in the case of SMT. JYOTI S. AND OTHERS v. UNION OF INDIA AND OTHERS disposed of on 03rd January, 2019 in WP No.15404-12 of 2014 and connected mattes, emphasised with regard to the appointment of persons as casual workers. She placed reliance on paragraphs 6 and 7 of the said judgment. She also produced copy of the note sheet dated 22nd February 2010 with regard to regularisation of contingent employees and submitted that since the petitioners have not put in ten years of service as declared by Hon'ble Supreme Court in the case of UMA DEVI (supra), the impugned orders came to be passed, which is just and proper and does not call for any interference by this Court.

15 9. Having heard the learned counsel for the parties and on perusal of writ petition papers, it is an undisputed fact that the petitioners herein have been appointed during 1998 and 2000 as Driver-cum-peon and Attenders. Perusal of Annexure-C dated 16th April, 2001 envisages that the petitioners have been appointed on contingent basis and their services have been continued till date. Respondent-Authorities, by order dated 15th January, 2010 (Annexure-D) have regularised and appointed eleven persons to the posts mentioned against their names with effect from the date of they reporting to duty and the perusal of writ papers would clearly indicate that these persons have put in ten years of service in the employment (as casual employees). Perusal of Annexure- F would clearly establish the fact that the case of petitioner in WP No.200760 of 2017 has been recommended by Office of the Income Tax (Intelligence and Criminal Investigation), Gulbarga for favourable consideration. On the other hand, perusal of the statement of objections would indicate that these petitioners have not been

16 appointed as against sanctioned posts. However, the similarly placed persons, who have put in ten years of service have been regularised pursuant to law declared by the Hon'ble Supreme Court in the case of UMA DEVI (supra). Paragraph 53 of the judgment of in the case of UMA DEVI (supra) envisages for consideration and regularisation. Hon'ble Supreme Court has directed the authorities and their instrumentalities to take steps for regularising as a onetime measure of such irregularly appointed persons who had worked for ten years or more in place of duly sanctioned posts. Perusal of the law declared by Hon'ble Supreme Court, further indicates that persons to be considered for regularisation should have put in service of ten years or more and should have worked as against sanctioned posts and also their continuance of service should be without the aid of Court or Tribunal, vis-à-vis eligibility criteria has been complied with by the Authority. In furtherance to the law declared by the Constitutional Bench of the Hon'ble Supreme Court, the Hon'ble Supreme Court in the case of M.L. KESARI

17 (supra) has held that the employees were entitled for regularisation and to be made permanent, unless they had been appointed in terms of relevant rules. Hon’ble Supreme Court in the case of NIHAL SINGH (supra), at paragraph 21 of the judgment, has observed as follows: “21. But we do not see any justification for the State to take a defence that after permitting the utilization of the services of large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. State has to create them by a conscious choice on the basis of some rational assessment of the need.” 10. It is also relevant to extract the observations made by the Hon'ble Supreme Court at paragraph 33 of the judgment. The same reads as follows: “33. Coming to the other aspect of the matter pointed out by the High Court that in the absence of sanctioned posts the State cannot be compelled to absorb the persons like the appellants into the services of the State, we can only say that posts are to be created by the State depending

18 upon the need to employ people having regard to various functions the State undertakes to discharge: “Every sovereign Government has within its own jurisdiction right and power to create whatever public offices it may regard as necessary to its proper functioning and its own internal administration.” 11. I have also considered the observations made by the Division Bench of this Court in the case of JYOTI S AND OTHERS (supra). In the said case, the Division Bench of this Court, having considered the scheme formulated and circulated by departments, has held that casual workers who were under the scheme would not be extended the benefit therein on the ground that they have not completed the stipulated period. In the said case, a scheme has been formulated by the respondents and in that connection, this Court has considered the case of the petitioners therein and held that the petitioners therein do not fit into the scheme of the department and accordingly, rejected the writ petition. In the case on hand, the services of the petitioners have been continued for nearly

19 two decades. It is also not disputed by the learned counsel for the respondent that the appointment of the petitioners are against the sanctioned post and their services have been continued from August 1998/2000, as per Annexure-F till today and the services of these petitioners are indispensable to respondent-authorities. 12. In that view of the matter, the rejection of the claim of the petitioners by the respondent-Authorities on the ground that they have not put in service of ten years as on 10th April, 2006 as per Annexure-A is contrary to the law declared by the Hon'ble Supreme Court in the case of UMA DEVI (supra), as well as the law declared by the Hon'ble Supreme Court in the case of NIHAL SINGH (supra). Accordingly, Annexure-A dated 23rd November, 2015 is liable to be set aside insofar as the petitioners are concerned, and are accordingly set aside. The respondent- Authorities are directed to consider the case of petitioners in the light of the observation made by the Hon'ble Supreme Court in the case of NIHAL SINGH (supra).

20 13. It is made clear that while setting aside the impugned order Annexure-A, this Court has not expressed any opinion about the regularisation or otherwise of the petitioners. It is in the domain of the authorities to take appropriate decision in the matter keeping in mind the objective as stated in the Preamble of Constitution of India. The Respondent-authorities are at liberty to take appropriate decision in the matter and the need of the services of the petitioners in their establishment, as expeditiously as possible within the parameters of law and at any event within an outer limit of three months from the date of receipt of a certified copy of this Order. For the reasons stated above, writ petitions are disposed of. Sd/- JUDGE lnn