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"NON-REPORTABLE"
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) No.10845 of 2009
H.S. Rajashekara .... Petitioner
Versus
State Bank of Mysore & Anr. .... Respondents
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. The petitioner herein was inducted into the service of the State Bank
of Mysore (hereinafter referred to as, the Bank) as a temporary Sub-Staff
in 1985. He was intermittently taken into employment based on the need
for such staff. During the year 1994-95, he claims to have rendered more
than 240 days of service in a calendar year. Based thereon, he claimed
that he be included in the “protected category” of employees. Having
satisfied the “protected category” criteria, the petitioner applied for
absorption as a permanent employee, by citing the example of one
Devaraju, by addressing representations to the Bank. It is also the
contention of the petitioner, that the employees union of the Bank also
addressed a communication dated 13.12.1997 to the management of the
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Bank requiring it to absorb the petitioner as a permanent employee. Since
the representations made by the petitioner, and recommendation made by
the employees union of the Bank, did not result in any consideration at the
hands of the Bank, the petitioner approached the High Court of Karnataka
(hereinafter referred to as, the High Court) by filing a Writ Petition being
W.P. No. 45932 of 1999. The aforesaid Writ Petition came to be disposed
of by a learned Single Judge of the High Court on 14.12.2004. In this
behalf, it would be relevant to mention, that the High Court did not examine
the merits of the controversy raised by the petitioner. Rather than doing
that, the High Court directed the Bank to take a decision on the
representation made by the petitioner by passing a written order. The
Bank was also directed to communicate the same to the petitioner.
2. The bank, while examining the claim raised by the petitioner, noticed
the contention of the petitioner as under:-
“(i) He has worked in several branches in Mysore during the
period 1985 to 1997.
(ii) During 8.7.1994 to 30.8.1995, he has served for 292 days.
(iii) State Bank of Mysore Employees Union has recommended
him to be employed on permanent basis. He has given
applications in this regard.
(iv) He has passed SSLC.
(v) One of his colleagues, one Shri Devaraju has also passed
SSLC and he has been given employment on permanent
basis. Therefore, he has prayed for passing of suitable
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order of appointment in his favour equivalent to the job
given to one Shri Devaraju.”
Despite the aforesaid pleas raised at the hands of the petitioner, the Bank
by an order dated 24.8.2005, rejected the petitioner’s claim for absorption
as a permanent employee. Two reasons were indicated in the order dated
24.8.2005 for not accepting the petitioner’s claim. It was found, that the
petitioner had not worked for 240 days in a calendar year, and that, he had
qualified the SSLC examination. The petitioner approached the High Court
yet again, to impugn the order dated 24.8.2005. At this juncture, the
petitioner preferred Writ Petition No. 22324 of 2005. Having dealt with the
controversy raised by the petitioner, the High Court by its order dated
13.11.2007, held that the petitioner was not entitled to absorption as a
permanent employee. The learned Single Judge, while dismissing Writ
Petition No. 22324 of 2005 acknowledged, that the petitioner had worked
for 292 days from 8.7.1994 to 30.8.1995. Despite the aforesaid, the High
Court was of the view, that the petitioner could not be given the benefit
claimed by him. This conclusion was drawn because the service for 240
days in a “calendar year”, was to be determined with reference to service
rendered between the 1st day of January of a particular year, upto 31st day
of December of the same year. Examined on the basis of the aforesaid
parameters, it was concluded, that the petitioner had not render service for
a period of 240 days in a “calendar year”. It was also sought to be
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concluded, that the petitioner had not worked in one branch of the bank
during the period from 8.7.1994 to 30.8.1995. It was sought to be
concluded, that while computing 240 days in a “calendar year” only service
rendered in one branch of the Bank could have been taken into
consideration. It was accordingly held, that service rendered in different
branches could not be added together to calculate the period of 240 days
(in a “calendar year”). As such, the claim raised by the petitioner did not
find favour with the High Court in its order dated 13.11.2007.
3. The petitioner assailed the order dated 13.11.2007, passed by the
learned Single Judge of the High Court (while disposing of Writ Petition
No. 22324 of 2005), by preferring Writ Appeal No. 24 of 2008. The
Division Bench of the High Court dismissed the aforesaid Writ Appeal on
4.11.2008. While adjudicating upon the controversy, the Division Bench
referred to the judgment rendered by this Court in Secretary, State of
Karnataka & Ors. Vs. Uma Devi & Ors. [(2006) 4 SCC 1], so as to
conclude, that the petitioner was not entitled to regularization in terms of
the parameters laid down by this Court.
4. We have given our thoughtful consideration to the claim raised by
the petitioner. The petitioner had approached the High Court, in the first
instance, by filing Writ Petition No. 45932 of 1999. The issue raised by
him as far back in the year 1999 remains unsettled till today. The claim of
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the petitioner as has been projected in the order passed by the
respondents on 24.8.2005 was clear and unambiguous, namely, that he
should be given the same benefit as was given to Shri Devaraju who had
qualified the SSLC examination just like the petitioner, and despite thereof,
he was absorbed as a permanent employee. The claim raised by the
petitioner was primarily raised under articles 14 and 16 of the Constitution
of India. The petitioner prayed for parity with the aforesaid Shri Devaraju.
This claim of the petitioner was correctly appreciated, inasmuch as, the
same was clearly noticed in the impugned order dated 24.8.2005.
Unfortunately, even though the High Court by its order dated 14.12.2004
(while disposing of Writ Petition No. 45932 of 1999) had directed the Bank
to decide the representation made by the petitioner, yet the claim of the
petitioner based on a similar benefit having been granted to Shri Devaraju,
was never adjudicated upon. The same claim was raised by the petitioner
before the High Court in Writ Petition No. 22324 of 2005, (wherein the
petitioner assailed the order passed by the Bank on 24.8.2005). Yet again,
the contention remained unanswered. Thereafter, the learned Division
Bench (in Writ Appeal No.24 of 2008) again rejected the claim of the
petitioner without reference to his principal prayer, viz., parity with Shri
Devaraju. The appeal preferred by the petitioner, assailing the order
passed by the learned Single Judge in Writ Petition No. 22324 of 2005,
was adjudicated upon with reference to the decision rendered by this Court
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in Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. [supra] even
though the same had no relevance to the prayer made by the petitioner.
The simple question raised by the petitioner was, with reference to the
decision of the Bank in absorbing Shri Devaraju, as a permanent
employee. The claim of the petitioner was founded under Articles 14 and
16 of the Constitution of India. Unfortunately, the aforesaid issue was not
considered even in the second round of litigation. The matter has now
been placed for our consideration, at the hands of the petitioner, through
the instance Petition for Special Leave to Appeal.
5. We have given our thoughtful consideration to the claim raised by
the petitioner. The learned Single Judge while deciding Writ Petition No.
22324 of 2005 acknowledged, that the petitioner had worked for 292 days
from 8.7.1994 to 30.8.1995. That, coupled with the fact, that Shri Devaraju
was absorbed as a permanent employee even though he had qualified the
SSLC examination, in our view, should have been sufficient to examine the
claim raised by the petitioner without reference to the disqualification of
having qualified the SSLC examination. In Radha Raman Samanta Vs.
Bank of India, (2004) 1 SCC 605, this Court relied upon the following
observations recorded in Budge Budge Jute Mills Co. Ltd. v. Workmen,
(1970) 1 LLJ 222 (SC), to record its observations :
from para 17 “…..Thus a badli workman only means a person
who is employed as a casual workman who is working in place of
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another. By virtue of the bipartite agreement published in Circular
No. XVIII/90/20 dated 7-9-1990 of the federation of the Bank, such a
badli worker is entitled to be absorbed if he completes 240 days of
badli service in a block of twelve months or a calendar year after
10.2.1988. Based on the conclusion arrived at by the learned Single
Judge after considering the relevant documents, the fact of the
appellant’s service for the required period cannot be disputed.
Nomenclature of his work profile may change, but it is clear that he
rendered services in a vacancy of a temporary post for more than
240 days. This is sufficient to treat him as a badli for the purpose of
absorption…..”
It is therefore clear, that for labour related matters the terms “calendar
year” and “block of twelve months” are interchangeable. It would be
sufficient, if the petitioner could establish, that he had rendered more than
240 days service in a “block of twelve months”. This in our view should
have been the determinating factor in a case where the consideration
pertained to the consideration of an employee’s claim for inclusion in the
“protected category” merely on account of having rendered 240 days
service in a “calendar year”. In view of the above, we are satisfied, that the
petitioner fulfilled the condition of having rendered service for 240 days in a
“calendar year”. The pleadings in the instant Petition for Special Leave to
Appeal, as also, the judgments and orders appended thereto do not
disclose any condition to the effect, that service rendered while computing
240 days in a “calendar year”, should have been rendered in the same
branch of the Bank. Keeping these factual ingredients in mind, and the
fact that the petitioner has been suffering litigation since the year 1999, we
feel that it would not be appropriate to require the re-adjudication of the
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entire controversy all over again. In the peculiar facts and circumstances
noticed hereinabove, we direct the respondent Bank to absorb the
petitioner as a permanent employee in the Sub-Staff cadre on the basis of
having rendered service for more than 240 days during 1994-95. The
petitioner would not be entitled to any further remuneration for the period
hitherto before, other than difference in emoluments, for the service
already rendered by him. This decision shall not be treated as a
precedent, as the same has been rendered keeping in mind the peculiar
facts and circumstances of this case.
6. Disposed of in the aforesaid terms.
…………………………….J.
(Asok Kumar Ganguly)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
November 24, 2011.
