High Court Karnataka High Court

Harish R vs The Managing Director on 17 December, 2009

Karnataka High Court
Harish R vs The Managing Director on 17 December, 2009
Author: Ram Mohan Reddy
E

IN THE HIGH COURT OF KARNATAKA, BAIVIGALORE

DATED THIS THE 17"' DAY OF' DECEMBER, 2909

mm HOWBLE hm. JUSTICE mm MORAN R1i;§i)Bj$r%LIi L?  % 

WRIT I>E'rI'rIo1~t N0.36202~2o3 QF}2oo9";%s§i§t1%V:si:  _ Q h  

BEFORE

BETWEEN

1

i~lARISI»-I R  -

$10. RAMALSNGEGOWDA

AGE 29 YEARS

R/AT. LAKSHNQ NILAYA « - *
NEXT TO APOLLO Hififf sc;Hc;01; 
STE CROSS, HEGGANAHEKLLI.    
BANGALORE 91.  .,

BASEWARAJ BIR;xDAVR*TVT.__  _

S/O. SI;iAN'¥'HAPI?A--   
AGESIYEARS .  " 

01.53.. Y H GQPALAIAH

rm. 360, 21"DfV$AI_N, 3RD CROSS
'N1E'AI42"Lv§3ASAvEsHWARA SCHOOL

A  P_IPE_LiN'€,R'{)AD, SRINWASANAGAR

 _SUN}§A_BAKa'iff1*E, B'LORE -- 9:.

 PETITIONERS

  (BY S'R_1:; K s:2i:§;':,}asA 53 STM A] S, ADVS.)

_ ?:' 'r~:_E MANAGING DMECTQR
 'KPFCL, CORPORATE GFFICE
 KAVERY BHAVAN, mmzm ~: .

THE MANAGING fiIREC'¥'OR'

BESCQM, CORPORATE OFFICE
K R CIRCLE, BANGALORE - 1.

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2

3 THE QIRECTQR (AEDMIN 65 H R}
KPTCL, KAVERY BHAVAN
BANGALORE «- 1. ...RESPONDE}\{'¥~'S

(BY SR1. N K GUPFA, smrszmns COUNSEL FOR 122-3) 

THESE PIETITIGNS FILED UNDER ARTICL,E'--2fi:6'.':'&'~A

227 09 THE CONSFITUTION OF INIHA P_RAYEN{E;~.. "§'{)

DIRECT THE RESPONDENTS TO CONSIDER THE '{:AsE"'<3_?, 

THE PETITIONERS FOR SELECTION’ AND APPC1lNTM.;§’,N”§’ V ~
TO THE POSTS OF JUNIOR E.NGINEER(E2 LE;) UNDER ‘r;m_’*1r_j
mam»; 01:’ COMPUTER SCIENCE IN RES–PONSE.”,~AT() ‘rma:

NOTIFICATION ISSUED BY ‘I’HE”–~,R3 ‘mag. A’r~;N;g;–….::)T:.
26.8.’2()O9;AN{) ETC.

THESE PE’i’I’I’IONS,, C<)MI1~m"<5'Nj' 50.8 PRLHEARING
IN 'E' GROUP, THIS DAY' _TH1~:;g MADE THE
FOLLOWING: =

''''
ThevVV".i5i .to be appointed as a

Gauging}; for 5: months ifmm Ja1:1uary 2000

.J1:11;:=; 2O(30"U11§vards, was posted to work as a

aiong with the 211*' petitioner a

' Ledg'er44:VALitcréfi§: Assista1":tt, when terminataé by order

" j – d; a;txij:ci };7%1?~2003 of the Chief Engineer, questioned the

W.P.No.71:'2/2004 which when ciubbed amg

other Writ petitions, was rejected by common Carder

A"–«dated 23–~03-2(){}4 A1mexur6–"A", issuing éirectiens ta

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frame a. scheme as set out in Paragraph 15 to entit§je”‘?}_i€::”‘*.,’

petitioners who are medicaily fit, subject to ”

and possessing flecessary qualifies .3011-to cQi}Isi;1ei”e(ij.

not only for the said }ob but also

the memo {Bed in the Court ‘sags.

In addition, a further    cf
Section 12 of the  Act,
1999,      therein to
make 3.   by the
Bangalorcs   Limited (for short

‘BESCOM5. «the petitioners, though a

representatio1″¥ w§§s’I$ia<Ai€ 8-3-2004 and 22-03-2004,

né3'Aa(:éim.:1 '53%as'%'taken téhhsorb them into its services but

3.6-«O6-2004 of the Assistant General

Manager (A&.i'.VP), BESCOM irxfmrmed the 2nd petitioner

" his.' wouid be considered as and Whfifi

ariss. The 21*' petitioner asserts that details

previous employment, was made ava;i.1ab}€ an 2-2»

".2Vf)09 and 7~2~2(){)9 to the Exczcutivs Engnesr. it: is

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stated that the 3!” respondent by nofification dated”.

08-2009, AImexur<?:~"J", invited appiic34ti0I1§""'*«'£'ijg"$3;1f,§V'1' "

eligible candidates for appointment to vari€)_13:3 it)

which the petitioners respondeé by ;

on 7-9~»20€)9. it is the a11egat:':m*3.__pf

their request for consideration Gfcasé fielécfion
and appoitamlent on the post of
Junior 'Engineer (E!c(:tI'i<;a§}– véfiong .}itit}{'ofi¥i§i.~~~J;g;}didates

in terms of the. when not

c0nsideIV&t5t'1",%é1'1'dViVi§1§»\riI1g nofified the list
of efigib1ev"'CanI:1 is opposed by filing Statement of

objecticiis V corrienéing that in terms of the

jttdginéizt {his Court, a sacileme Am’1ex1;13:e~”R 1″ was

v4A_f;*§i*:1ixi13;tedV’ an 6-5-2004 and a notification dated 21»-12~

A11nex11re=–“R2″ was issued in exercise of

if-_1:isdictio;”} under Secfimta 12 of the Karnataka

EEK

Eiectricity Reforms Act, 1999 (for Sh{)1″t ‘Act’). it is the

specific case of the respondents; that the

mtitioners, amongst others similarly -2 é

were considered and despite extendiggg the cf u

the scheme, nevertheless did noti.__meet 3 :;_*

standards, in competition d1he1*VI11::§fi1:e:<#iQ;J_is

candidates and tllerefore, thCI_'{3 iS 2.110 merit the

contention that their were §.:1c;i"'*ee{1eidered in the '

matter of recretitmenfi; in,e:mi.js; effihe dated

2e»03»20§;)é)%<A:+ué;%:xu££é§%I¥.e»[Qf

3. Learned fkie petitioner points em: to

Paiagajph _ jfiielgment dated 23-{)2-2004

fi””n.=eXi}{4e;-.¢’g:g_”‘VA’@f tI1eW1ea”‘ rned Single Judge te contend

was to benefit the petitioners

::-juteexzget en the basie of reported 0§iI}i(}I1S of the

.. in the matter of pmviding employment as

VT and therefere, the gpetitiozxers have a vested

wuen future vacancies arise in the respendent —-

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right to appoinment in any form in I’6CI”£),itII}€{_1t,

absorption, regularisattion, permanency, etc.

additien, learned counsel submits that if the *

petitioners have in fact been .a:en.side:=;4ed ‘

respondent, a iegai duty is cast “7:

make lmown the petitionef fé;te__ of
considerafion. z A A . .

4. Sri. N.K. T — R’ sel for the

reepondent —~ BESSQM, 6 and

7 of the V”State211e:iit’:’ eébjtectiefis, to contend that the

echeme fomvfiatlatyeti’ of the directions of the

–S_’1ngle» “as_a.ppreved by the State Govemment

i-:3 ‘ eXerc1se”ei’«._pewer under Section 12 01’ the Act was

B;1aCie.ét1jplViCé3f;:1e5t’t1’tt) the petitioners amongst others in the

_ iz1_a.tter’§:»f pursuant to the nofificafien dated

Amzexnre-“J” and the petitieners were

to be wantirlg in merit. It is next contended that

the light ef the iaw iaid ciewn by the Censtittition

Lek

we

Bench ef the Supreme Court in SECRETARY, STATE

or KARNATAKA Am) on-mas vs. UBEABEVI

OTHERS 1, the petitioners are disentit}eci_;”‘£($ ”

appointmerlt eemrary to the constimtjonai 3

if the petitioners claim under the eoveréeei’ ‘i;he4._()rr,iez* eve

this Court which cannot but.be___ eoxisimed ‘%’}’iti,gio11_}3 V

employment.

5. Having heard thethe parties

and perused ti1e..p¥.eadings, cc>e:it;e;1tief;s»Vadvanoed by

the iearzfied * “petitioner must stand

repelled the observations of the

Be;1ef1Ai11…IJmadevi’s case at paragaph 43

V made _

V Vfiius, it is clear that adherence to
r’@e’ eff equaiity in public employment is

.. ,a_ base feature of our Constitufion and since
nu * rule of law is the core of our
Censtitutien, a Court would certamly be

‘ disabled from passing an order upholding a

111,12 2035 KAR 269’? : :200e{4} see 1 EKK

/2

violation of Article 14 or in oréering the

overlooking of the need to comply with the

r6quireI11erits of Article 14 read with

16 of the Constfiution. Therefore, coneisteiat ‘. “”

W-‘ith the scheme for public emp§eyment,”‘£1–“{ie» .

Court While laying down 4′

necessarily to hold that l?_u:.t1l_ess 2 V’

appointment is in terms rele1¥e11t.VVArule1éV”‘

and after a proiper cefifiefitipn ameM11gVf5
qualified persons, tl1e:%«-saxiie fist: confer
any night on the is a
contractual l V. _aj)peli1unent

comes td l’aIji_en{§.4a£_€l’1e end. 51* the contract, if
it Were’ eVI1g::»:.ge:3,_1 e:11§’V…or appoirltxnent on
daily W”agee_of Ca’eu}:»3}§_”\.basis, the same would

ecgrlrieu. te an-..__e1id when it is discontinued.

. V. teeijierary employee could not

‘ ,_§e».4be’£egeade pezmanent en the expiry ef

” file –:_c§i’-‘lappointznent. It has also to be

that merely because a temporary

.. Vemelejzee or a casual wage worker is
” – _eei1finued for a fime beyomi the term of his

apmintment, he would not be entitled to be

‘absorbed in regular service or made

permanent, merely on the strength of such

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continuance, if the 0rig7J:1ai appoinmlent was
not made by fellowing a due process of

selecfien as envisaged by the relevant rules.

It is not open to the Court 1:0 prevent regular

remuitment at: the instance of temp0ra;j£– f A’

employees whose period of employment h{§lSv

come to an end or of ad has employees l

by the very nature of their ajlpoilitrlieixi, ‘V _
not acquire any right. {Ifhe ‘I–ii_@ .

acting under Article 226 eif. me
should not, ordinggilv iSS{1e”_:’dii’ectienS”–ferV4
absorption. reg111ai*i:§a§;it31f;,f’i-.’ 10z4’= fflfirmanent

contiI1uéi1ee., xeemjitxnent itself
wa.s°made .re’g”uJa73’lvl’ee—af:.d in terms of the
constifimenall sc1:t_eme,; Merely because an

etiipleyee eonimued under cover of an

. . c)’i’dei; which we have described

_£3fsf ”_*employment” in the earlier part
.’ . ciiftixe _iiis;l.gtx1ent, he would not be entitled 1:0

@113: ts be absorbed 91* made permanent

.. Vein {lie service. In fact, in each Cases, the

V’ ‘~ Court may not be justified in issuing

interim éire<::tie::n:1e, since, after all, if

Iiltimately the employee approachiflg it is
found entitled te relief, it may be possible for

Eek

_ thus: " _{ l "

E0

it to moulci the reiief in such a manner that

ultimately no prejudice will be caused to

him, whereas an interim dileetiorz

continue his employment would hold 1~1p_.”tl<1e '. :"

regular procedure fer selectioripr

the State the burden of payiilg a1}4T'e_m§1eye{g'*.V

who is really not required. mm; * V' K
be careful in ensuring tliey_ 6.9:
interfere unduly _ with' egofigmie
arrangement of its by vlti1e'»SLate or its
i11str1iIeenta}ities or the

iI1stI1nneI;t5«:te- _ V'p'aesing of

the, stat: mandates. "

Patafié;t)§l. til’ the said. judgment reads

_ hile directing the’: appointments,
casual, be regularised or made
the Courts are swayeé by the

fee: Vltljxat the person concerned has Worked
‘f€)_”:i’ eeme time and in some cases fer a
A’ ‘eefisidemble length at” time. It is not as if
the person who aoeepts an engagement
either temporary or casual in nature, is not

aware of the nature ef his employment. He

MK

£1

accepts the employment with open eyes. It

may be true that he is not in a position to

bargainvnot at arm’s le:I1gth~sim:e he mig¥1t.’4″_»V.’: ”

have been searching for some ernploymieijt, “-”

so as to eke out his iivelihooi aeoepfs» ‘

whatever he gets. But on tlxaf, m*om:id a1o3;1e, ‘

it would not be avsropriate to A’

constitutional scheme of apfieinmenfi ‘

take the View that a who ‘vheasj
temnoraliiv or easssifiygot should
m directed to be c:oz;g’B’i1me¢iiV.VD<§:H:€i'af1e'r;!tIVV. sv
doing so. it of

public hof, permissible.

If t:he'”‘ :%Yeré~..«Vto contractual
ems1{)y’menii on the gound
that ‘the – paifies’ not having equal

bai”‘gaini14ig..pow’er, ‘th2w1t too would not enable

tb….._gfgnt any. relief to that

‘ Dem_p=1oyee_ total embargo on such casual

~. ery empioyment is not possible,

giveI;”1ihe” exigencies of administration and if

imfiesed, would only mean that some people

” at least get empleyment temporarily,
eentractualiy or casually, would mot be

getting even that employment when securing

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ef such employment brings at least some

succeur to them. After all, irlnullierahlej ”

Citizens of our vast country are in Search-,.__i)f.

employment and ene is net. ” ‘

accept a casual or {emporaxyl’».:emplof¢ii1e_i1t’if

one is not inclined to i11’fQr”–suchv5aI;’ ‘

employment. It is in tha’t4c,centext’*–fl:1at H

has to proceed .01} t1’1af’~t,l]e’3
emplovment was accepted the
nature of it and t11.e..”cen§§e<§u<£raceé§' ;filbwiz1e
from it. ln~'o{;'}e1' we-rds,–v.evezl.'\$?i1ile_V}}ieeeptjng

the em151cy*«1fiee;:,: concerned

ellfdlfiioyment. It is
notlaéxzl post in the real
sense loll t;1'1elV"tef1'If1_." .e::_?§'he claim acquired by

ifl the" if} which he is temporarily

. _ 'eIe};iieye<i_er thelllijiterest in that post eaimot

l VA to be of such a magnitucie as

" . hie' giving up of the preeedure

e'etai*-i:liSi"ied, fer maleing regular

e Veapieoiiimlenta 116 available posts in the

V' 2 _sze;:viee of the State. The argument that

einee one has been working for sometime in

the post, it will act be just to discontinue

him, even thcugh he was aware of the nature

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of the empieyment when he first; took it up,

is not {sic} one that woulci enable the H

jettisoning of the procedure established §:)y '

law for ynblie employment and would I:-fivrey

to faii when tested en the _JtM<31;{ff§.:’ti§:=le..’21 of the Constitution.

:,.’the«}rery “a1*gu’n1en’£ indicates that there

‘ for employment and an

~. for eempeting for

emplwment anti it is in that context that the

Cefisfitution as one of its basic features, has

” iifzeiucied Articles 14, 16 anci 369 so as to

efisure that public employment is given only

in a fair and equitable manner by giving al}

those who are qualified, an o§p0rt1mity to

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seek employment. in the guise of upholding

rights under Article 21 of the Constitufion, a W

set of persons cannot be preferred 0Ver_Ha,_’4″

vest majetfitji of peeple waiting for

opportunity to cempete__…. for ‘

employment. The acceptencee fl _ 1 the 4′ *

argument on behalf of _ the responde:.:te’ A’ ‘
would really negate the ‘is of 3 the etl*;;efs>4’V S

conferred by Article. 21 Qf–..the_ €3e12etit’:1–tiQnA,v§
assuming that We _ in 3; to held
that the right to emVpley_m.ei1t right

coming the 2 1 of

Tl1eVV__atg_iunent that Article
23 6f the breached because
the enipleyment wages ameunts ta

fdyeed labemi, ieangrlot be accepted. After all,

” the :’etej$§eyees accepted the employment at

and with eyes caper; as te

of their employment. The

(}e’§Ierj mu’ tents else revised the m1’m’m:1m

A. egageeh payable fiem time te time in the light

” all relevant eircumetaneess. It also

appears to us that importing ef these

theeries to defeat the basic requirement of

public employment would defeat the

lralt

IS

constimtionai scheme and the constitutional

gcai of equality.”

(Emphasis suppliecgf.’ ” ‘ jj — : E is A4

At Paragaph 54, it is held ¥:h1;s:~~

“54. It is alst)

decisions which run couiitay to
settled in this decisio1 i;.

directions running ‘:C9un1_:t§i; . we

held herain, wili s;t;a;1d’ %r1%:a:1u¢§1je::%%%j%.i;srkL their
status as pr¢ce§1entS;””–::’; V’ V’ ‘ ”

6. PaI9VV”L’«’r;:::p:’fz% .Co:1stit1::.tion Bench, in

exereiae of 142 of the Constitution,

__in ordegf tudo jtisiiéé, directed that if sanctioned posts

V. would take immediate steps by

a reguiar process of selectioiz and

in smith a’ pi’0ces$, smch of mass employee: in thf:

” Tax Department on temporary casual basis,

aliewed to campete waiving the age restriction

” for the I’€5CI’1J.iEII1€I1’£ and giving some Weightage

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for their having been engaged for walk in the

Department fer a significant period ef time.

7′. A three judge beach of the Apex Ceuxjt,

OFFICIAL LIQUIDATOR vs. DAYANAND2, néléi 4% ~

Paragraph 55 of the judgment in Umadevi’sI_4ed$e”edid.Vn<§i;.

iay down a iaw. In that View of the :i::;a.t'ijet'; 77:

scheme formulated at 'agfiprdfifed
the State is in violation the ,e'<3;;1.$:£iti;tionai' sehefae in

public empioyment and tk1:eee'V:}3eti'tioners were

disentitieizlt tcav a tzftheir claime in terms of
the scheme. "

firevm any angle, the claim of the

A’-petitienere £923 issue of a writ of mandamus directing the

reépe<)Vit'::dee;r"1i;é."_*v.v.tg:)'fitinsider their case for selection and

V the pest ef' J 1121101' Engneer (Electrical),

' ' trade Computer Science, pursuant to the

d ' ~ :%f{20a9; 1 sec fbabeur e Service) 943

:1?

notification dated 26-08-2009 Annexure–“J”, is

unavaiiabla.

9. in the result, Writ petitions are _

and are rejected.

Sri. N.K. Gupta, learned co11Vi1sei i§::’ if

fiie his memo of appearance “;l_§~»1 fa. .,1.'{}1_1i”

weeks.

KS