JAYANTHA AND ANOTHER Vs. STATE OF KARNATAKA AND ANOTHER

JUDGEMENT

(1.) HEARD the learned Counsel for the petitioners and the learned Counsel for the respondents.

(2.) THESE petitions are heard and disposed of together by this common order as the issues that arise for consideration are identical. It is the case of the petitioners that they were initially engaged on daily wages in the year 1991 by the second respondent -Mangalore University and had continued till such time they were appointed on temporary basis as peons in the scale of pay 840 -1340 as per the official memorandum dated 6 -2 -1995. This was continued from time to time for over two years. Thereafter, yet another office order was issued dated 10 -6 -1997 and they were placed on a consolidated salary which effected their service conditions in time scale of pay which was converted into consolidated salary. The petitioners being aggrieved filed writ petition in W.P. Nos. 37787 to 37805 of 1997. Those petitions were disposed of by an order, dated 27 -11 -1998, issuing certain directions to the second respondent -University. It was specifically directed that the second respondent shall consider the case of temporary employees who had completed 10 years of continuous service in order to regularise their services after obtaining appropriate directions from the State Government. The said direction was challenged by way of an appeal in Writ Appeal Nos. 1502 to 1520 of 1999. The Division Bench dismissed the appeals by a judgment dated 15 -12 -2000. It is thereafter that the second respondent had addressed a letter dated 10 -7 -2003 to the first respondent seeking permission to frame statutes to enable the University to regularise the services of the petitioners. It was found that their services were very essential. One more representation was made reiterating the request. These requests are at Annexures -D and E to the writ petitions. The second respondent did not show any inclination to consider the requests. The petitioners therefore, preferred one more writ petition in W.P. Nos. 25303 and 25304 of 2004 seeking a direction to the second respondent to regularise their services and also grant the benefit of pay scales and other allowances. During the pendency of that writ petition, an official memorandum dated 28 -9 -2005 proposing to regularise the services of 17 temporary employees including the petitioners, was issued by the University. This was duly approved by the Syndicate at its meeting dated 20 -9 -2005 as also by the then Vice -Chancellor as per his approval dated 28 -9 -2005. There was reference to a letter by the first respondent dated 3 -2 -2004. The State Government, however, did not issue any unconditional permission insofar as the proposal to regularise the services of the petitioners was concerned and was non -committal about the proposed regularisation. The first respondent had only indicated that the second respondent may consider the case of the temporary employees, including the petitioners, keeping in view the directions issued by this Court in W.A. Nos. 1502 to 1520 of 1999 and to take action at the "University level" keeping in view the provisions of the Karnataka State Universities Act, 1976 and Rules framed thereunder. The second respondent proceeded to regularise the services of the petitioners accordingly, in terms of the official memorandum dated 28 -9 -2005. When the writ petitions in W.P. Nos. 25303 and 25304 of 2004 which was pending came up for consideration, the respondents had stated that in view of the official memorandum dated 28 -9 -2005, the writ petitions would not survive for consideration. It was also contended by the learned Counsel for the respondents that since the services of the petitioners were regularised, the petitions may not be maintainable. Accordingly, the writ petitions were disposed of placing the submissions on record. On 30 -11 -2007, an official memorandum was issued by virtue of which the probationary period of the petitioners and others, whose services were regularised, was satisfactorily declared. Subsequently, the second respondent also framed draft statutes relating to counting the temporary service of non -teaching employees prior to their regular appointment for purposes of pensionary benefits. The draft statutes were duly approved by the Syndicate Finance Committee and the Academic Council in the meeting held on 16 -1 -2009, 18 -2 -2009 and 17 -3 -2009, respectively. A letter was then addressed to the first respondent seeking approval of the Chancellor of the aforesaid draft statutes. The first respondent did not, however, grant approval to the said draft statutes. On the other hand, the first respondent issued a show -cause notice to the second respondent dated 10 -11 -2009 seeking explanation as to how the services of 17 temporary employees were regularised contrary to the law laid down by the Apex Court. An explanation was said to be offered on 25 -11 -2009 but the petitioners are unaware of the content of that explanation. The first respondent thereafter issued an order dated 30 -11 -2010 cancelling the regularisation of the services of the petitioners and others and directed the second respondent to recover the difference of salary paid to them in the regular scale of pay with a further direction to take disciplinary action against the officers/employees who were responsible for placing the proposal for regularisation of the services of the temporary employees before the Syndicate as well as the Chancellor pursuant to which the second respondent has proceeded to take action against the petitioners and it is being aggrieved by that circumstance that the petitioners are before this Court.

(3.) THE learned Government Pleader on the other hand has vehemently resisted the petition and would contend that the petitioners were employed temporarily by the second respondent invoking Section 51 -B of the Karnataka State Universities Act, 1976 (hereinafter referred to as the 'Act' for brevity), in which, the period prescribed for appointment is less than one year. However, they were continued from time to time. In the year 1997 itself, though they were appointed in the year 1995, the petitioners had approached this Court by way of writ petitions in which directions were issued not to terminate the petitioners and to continue them as temporary employees until regular recruitments were made and to give weightage to the number of years of service rendered by them and to consider their case for regularisation if they had completed 10 years of continuous service as on the date of disposal of the writ petitions. It is the case of the Government Pleader that none of the petitioners had completed 10 years of service when regularisation of their services were sought in the year 2003. It is in that background that the State Government had replied in terms of a letter dated 3 -2 -2004, Annexure -G, expressing its dismay that there was no provision under which the petitioners' services could be regularised. On the other hand, the policy prevailing was that no temporary employee who had been appointed subsequent to 1 -7 -1984, could be considered for regularisation and in the absence of any provision for such regularisation, the request of the University seeking regularisation of the appointment of the petitioners would not be considered and further, that the question of regularisation of temporary employees was an issue pending before the Supreme Court and therefore, till such time the law was declared by the Apex Court, it would be unwise to consider the regularisation of the services of the petitioners. And had merely indicated that in that situation, it was for the University to take the risk of continuing the employment of the petitioners, in accordance with the Universities Act and Rules. The University having unilaterally permitted the regularisation of the services of the petitioners, has done so at its risk. The question of now redetermining such regularisation of services by the State Government would not arise as the State Government is bound to apply the law of the land which prohibits any such regularisation of such services when they were not recruited in the usual course as is the settled law. The Official Memorandum dated 28 -9 -2005 is not based on any statutes nor is it approved by the Chancellor and the approval of the Syndicate which approval was also seconded by the Vice -Chancellor, are wholly irrelevant and in any event, even after the approval by the Syndicate of the said official memorandum, it was never sent to the State Government seeking its approval and the petitioners having been continued by the University in their positions pursuant to the official memorandum dated 28 -9 -2005, would not clothe the petitioners with any legality in seeking such regularisation and the question of considering their services prior to such illegal regularisation, would not arise at all. It is in that background that the draft statutes insofar as the pensionary benefits, that was proposed to be conferred on the petitioners, has been stoutly rejected and further action has been proposed in terms of the impugned orders. He would further point out that the impugned orders are issued under the power conferred on the State Government in terms of Section 10(1) of the Karnataka State Universities Act, 2000 which provides the power to the State Government to annul the orders of the University if it is found to be inconsistent with the policy of the State Government. The University has been afforded an opportunity to explain itself of the illegal acts committed by it and reply dated 25 -11 -2009 that was issued by the second respondent -University in response to the show -cause notice would hardly justify its action as the same is not in conformity with the policy of the State Government nor is it in conformity with the law as laid down by the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, AIR 2006 SC 1806 wherein the Apex Court has frowned upon circumstances where appointments of daily wagers and temporary employees were made without following the procedures and therefore, the second respondent -University, in the present case on hand, having acted against the policy of the State Government and without complying with the procedure prescribed, would result in the appointment of the petitioners being illegal and hence, the question of either regularising their services or providing any benefits by virtue of such employment, would not arise and would seek to place reliance on a large number of decisions which are as follows. - 1. Md. Ashif and Others Vs. State of Bihar and Others, (2010) 58 BLJR 805 2. Official Liquidator Vs. Dayanand and Others, JT (2008) 11 SC 467 3. Post Master General, Kolkata and Others Vs. Tutu Das (Dutta), JT (2007) 6 SC 340 4. Harminder Kaur and Others Vs. Union of India (UOI) and Others, AIR 2009 SC 2875