ft. IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19Th DAY OF APRIL 2012 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO. 1307 1/2012(L-RES) BETWEEN: [ENTITY] Sb late Papasetty Aged about 45 years, 0cc: Group-D Employee, R/at No.5, Harangi Distributary K.R.Nagar Taluk Mysore District . . . PETITIONER (By Sri.[ENTITY], Advocate) AND: 1) [ENTITY] By its Secretary to the Govt. Dept. of Irrigation M.S.Building Dr.B.RAmbedkar Veedhi, Bangalore-560 001 2) [ENTITY], No.1, 4th Floor, Coffee Board Building Dr.B.RArnbedkar Veedhi, Bangalore-560 001 Rep. by its General Manager (Finance) 3) The [ENTITY] 4) The [ENTITY] . . . RESPONDENTS (By Sri. [ENTITY], 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 EQUAL PAY FOR EQUAL WORK WITH CONTINUITY OF SERVICE VIDE ANN-B. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: ORDER
Heard Sri. [ENTITY] learned counsel appearing on behalf of Sri.[ENTITY], for petitioner and Sri [ENTITY], learned Additional Government Advocate appearing for respondents. Perused the impugned records.
2. Petitioner is seeking for issue of writ of mandamus to direct respondents No.2 to 4 to implement the order passed by this Court on 06.03.2006 in [CASE NUMBER] 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 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] of the [ACT] 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 [CASE NUMBER] 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 [CASE NUMBER] 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 [CASE NUMBER] and an order of dismissal came to V be passed on 08.02.2007 as per Annexure-C. Respondent State perused the grievance before the Honbie Apex Court in [CASE NUMBER] 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 [SECTION].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 resp ondent.
6. Per contra, Sri[ENTITY], learned Additional Government Advocate wou ld submit that petitioner has an alternate remedy ava ilable under the [ACT] for redress al of his grievance if any in so far as the first prayer is concerned. He would also contend that question of regularizing the services of petitioner is con cerned 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 regularizin g 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 accord ance with law viz., as per recruitment Rules as it was pre vailing then and as such he seeks for dismissal of the wri t 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 Referen rejected the claim of the petitioner for rein statement and 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 other equivalent position In any other 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] of the [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.
9. In so far as second prayer Is concerned It relates to regularlzation of service. As rightly contended 4 .
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 adhoc employment who have been appointed or recruited dehors the strength in public employment, issuance of direction by the Court to regularize would be impermissible. One such decision is in the case of [PRECEDENT] wherein it has been held as under:
12. We may at the outset refer 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 [SECTION] of the [ACT] will not issue directions for regularisation. absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in [SECTION] and [SECTION] should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, hack door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of 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 year s, will not entitle such employee to claim 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.
(iii) 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), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the 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.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts.
There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
10. Yet again Honbie Apex Court In the case of [PRECEDENT] has taken Into consideration its earlier judgment in the case of [ENTITY] 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 to 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