M P GANGARANGAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) A learned Single Judge of this Court has made this reference vide order dated 5-3-2001 to a larger Bench in view of the conflicting judgments of two Division Benches, in Writ Appeal Nos. 2765 to 2905 of 2000, DD: 23-1-2001, whereby the State and other authorities were directed to consider the cases of the employees who have put in service of ten years or more, continuously, for regularisation in terms of the direction/orders passed by the Apex Court in the cases of Dharwad District pwd Literate Daily Wages Employees'association v State of Karnataka1, and State of Karnataka and Others v Karnataka Casual and Daily Rated workers Union, Hubli , wherein it was observed that "such judgment of the co-ordinate Bench is clearly 'per incuriam' in view of the judgment of the Supreme Court in cases State of Punjab and Others v Surinder kumar and Others and Jammu and Kashmir Public Service Commission v Dr. Narinder Mohan and Others4. Thus, vide order dated 14-3-2002, passed by the Hon'ble Chief Justice, this Reference is placed before us on 26-3-2002.

(2.) THE necessary facts leading to the order of reference, as stated by the learned Counsel, are: It is stated that the earlier Act, i. e. , the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayat and Nyaya Panchayat Act, 1983 (Act 20 of 1985) was enacted on 14-8-1985 and some Departments were transferred to the Zilla Panchayat. It is stated that some more Departments were added in 1987, 1991 and 1995 also and so far as the daily wage employees are concerned, they have been transferred to Mandal Panchayat and they were allowed to work and continue in service subject to budgetary allocation. It is stated that after establishment of Zilla Parishads, despite the power conferred, no recruitment rules were framed till 1988. However, in respect of some cadres C and R Rules were published in 1988 but the same has not been given effect to. Thereafter, in view of the 73rd constitutional amendment, Article 243-G of the Constitution has been inserted and in pursuance of it the Karnataka Panchayat Raj Act, 1993 came into force on 10-5-1993. The learned Counsel submits that in pursuance of the 1993 act, Panchayats have been constituted at Mandal, Taluk and District levels as independent bodies and have been functioning as corporate bodies and as such the persons working in Zilla Panchayats are to be transferred to respective Departments as per the relevant provisions. It is also stated that there are two types, NMR and Work Charge Departments. The casual employees, who stood transferred along with the employees of Zilla Panchayat and other set of employees appointed by the zilla Panchayat by virtue of doctrine of necessity. It is stated that as the government desired to frame service rules and it required some time, the learned Single Judge directed the Government to constitute a service and to identify the cadres within 31-12-2000 and also issued other directions.

(3.) IT is submitted that those who have put in 10 years of service and working against sanctioned posts are entitled for regularisation as per the scheme framed in the Dharwad District PWD Literate Daily Wages employees' Association's case, supra. It is submitted that the first Division Bench has confirmed the judgment in Dharwad District PWD Literate Daily Wages Employees' Association's case, supra, vide order dated 23-1-2001 in W. A. Nos. 2765 to 2905 of 2000 and the special leave petitions filed before the Supreme Court against these appeals were rejected on 5-11-2001. It is submitted that on an earlier occasion three writ petitions were filed. The daily wage employees were appointed after 1-7-1984, and therefore, their services were not regularised, which is contrary to the Government Order dated 8-9-1990. The Government submitted a scheme to the Supreme Court stating that the services of daily wage employees who had put in 5 years of service would be regularized after the completion of 10 years service, and only such persons' service would be regularised who are appointed prior to 1-7-1984. Thereafter, the petitioners made an oral claim that the scheme may be modified to the extent that the employees who are appointed prior to and as on 1-1-1990. The Supreme Court modified the scheme, to the extent that those who were appointed prior to and as on 1-7-1984 and had put in more than 10 years of service, were entitled to be regularised from 1-1-1990 and remaining will have to be regularised on or before 31-12-1997. After this judgment a Government Order came to be issued on 6-8-1990 annulling the appointments made after 1-7-1984, but continuing the service of those who had put in service of 240 days, governed as per Section 25-B of the Industrial Disputes Act, 1947. In Dharwad District PWD Literate Daily Wages Employees' Association's case, supra, pursuant to the directions issued by their Lordships the State prepared a scheme for regularising the services of the daily rated employees which was accepted by the Court with certain modifications. The scheme envisaged that those casual/daily rated employee, who was appointed on or before first of July, 1984 shall be treated as monthly Rated Establishment (MRE) employee with a fixed pay of Rs. 780 per month with effect from 1-1-1990. The Government issued official memorandum dated 3rd July, 1984 followed by Government Order dated 6-8-1990 prescribing the modalities of regularisation/absorption of casual/daily rated employee in MRE and their eventual absorption as regular Government servants and specifying that the scheme was however applicable only to such of the employees as had been appointed on or before 1st of July, 1984 and remained continuously in service till 6-8-1990. The learned Single Judge, while dealing with the regularisation of daily wage employees, in W. P. Nos. 3354 to 3357 of 1998 and connected matters, observed that: