IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR W.P.NO.59909/2014 (S-RES) C/W W.P.NO.36962/2016 (S-RES) IN W.P.NO.59909/2014 BETWEEN SMT.CHANDRAKALA D/O MR.RAJANNA, AGED ABOUT 29 YEARS, ASSISTANT HINDI TEACHER, SHRI.S.C.B.D.S. HIGH SCHOOL, DODDA BEEDI, PERIYAPATNA TOWN, PERIYAPTNAA-571 107 (BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI G M CHANDRASHEKAR, ADV.) AND 1. STATE OF KARNATAKA DEPARTMENT OF EDUCATION, M.S.BUILDING, BANGALORE-560 001. REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS MYSORE DISTRICT, OPP TO C.P.C.
...PETITIONER POLYTECHNIC COLLEGE MYSORE-570010.
3. SRI CHIKAVEERADESHIKENDRA SWAMY VIDHYA PEETHA (R) LEELAKYA MUTT, BETTADAPURA TOWN, BETTADAPURA, PERIYAPATNA TALUK-571 102, MYSORE DISTRICT, REPRESENTED BY ITS PRESIDENT SRI CHANNABASAVA DESHIKENDRA SWAMIJI 4. SRI CHIKAVEERADESHIKENDRA SWAMY VIDHYA PEETHA (R) VIRAKTHA MUTT, BETTADAPURA TOWN, BETTADAPURA, PERIYAPATNA TALUK-571 102, MYSORE DISTRICT.
REPRESENTED BY ITS SECRETARY, SRI.M.C.B. SATHYAPRAKASH 5. SMT.POORNIMA.M W/O MAHESHA K.N., AGED ABOUT 39 YEARS, R/A DOOR NO.115/5, CHATRADA BEEDHI, PERIYAPATNA TOWN, PERIYAPATNA-571 107, MYSORE DISTRICT.
…RESPONDENTS (BY SRI MAHESH SHETTY, ADV. FOR R1 AND R2, SRI M.S.PARTHASARATHI, ADV. FOR R3 AND R4, SRI R.B.ANNAPPANAVAR, ADV. FOR R5 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE JUDGEMENT DTD.30.01.2013 IN E.A.T.NO.3/2011 VIDE ANNEX-E AND ORDER DTD.4.9.2014 IN W.P.NO.19863-
64/2013 VIDE ANNEX-F IS NOT BINDING ON THE PETITIONER HEREIN.
IN W.P.NO.36962/2016 BETWEEN SMT CHANDRAKALA D/O MR. RAJANNA, AGED ABOUT 30 YEARS, ASSISTANT HINDI TEACHER, SHRI S.C.B.D.S. HIGH SCHOOL, DODDA BEEDI, PERIYAPATNA TOWN, PERIYAPATNA - 571 107.
(BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI G M CHANDRASHEKAR, ADV.) AND 1. STATE OF KARNATAKA DEPARTMENT OF EDUCATION, M.S.BUILDING, BANGALORE - 560 001 REP BY ITS PRINCIPAL SECRETARY.
2. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS MYSORE DISTRICT, OPP TO C.P.C. POLYTECHNIC COLLEGE, MYSORE - 570 010.
3. SRI CHIKAVEERADESHIKENDRA SWAMY VIDHYA PEETHA (R) LEELAKYA MUTT, BEETADAPURA TOWN, BETTADAPURA, PERIYAPATNA TALUK - 571 102 ...PETITIONER MYSORE DISTRICT, REP BY ITS PRESIDENT SRI CHANNABASAVA DESHIKENDRA SWAMIJI 4 . SRI CHIKAVEERADESHIKENDRA SWAMY VIDHYA PEETHA (R) VIRAKTHA MUTT, BEETADAPURA TOWN, BETTADAPURA, PERIYAPATNA TALUK - 571102 MYSORE DISTRICT, REPRESENTED BY ITS SECRETARY, SRI M.C.B. SATHYAPRAKASH.
5. SMT. POORNIMA M W/O MAHESHA K N., AGED ABOUT 40 YEARS, R/AT NO. 115/5, CHATRADA BEEDI, PERIYAPATNA TOWN, PERIYAPATNA - 571 107 MYSORE DISTRICT.
…RESPONDENTS (BY SRI MAHESH SHETTY, ADV. FOR R1 AND R2, SRI M.S.PARTHASARATHI, ADV. FOR R3 AND R4, SRI R.B.ANNAPPANAVAR, ADV. FOR R5 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER 26.9.2015 PASSED BY THE R-1 PRODUCED AT ANNEXURE-N ETC.
THESE WRIT PETITIONS COMING ON FOR DICTATING ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Having heard the learned Counsels, both the writ petitions are taken up for disposal by this common order as the parties are common and the parties are at issue with regard to their right to employment with respondent no.4-Institution run by respondent no.3-Mutt.
2. Heard the learned Senior Counsel Sri Ashok Haranahalli along with the Counsel for the petitioner, learned Counsel Sri M.P.Srikanth on behalf of respondents 3 & 4 and the learned Counsel for respondent no.5.
3. In the first writ petition bearing W.P.No.59909/2014, the petitioner has sought for the relief to declare that the judgment of the Education Appellate Tribunal dated 30.01.2013 rendered in EAT No.03/2011 and the order dated 04.09.2014 rendered in W.P.Nos.19863-64/2013 is not binding on the petitioner. The orders impugned are produced as Annexures-E & F to the petition. The petitioner has also sought for a further relief to include the name of the petitioner in the Circular dated 23.10.2014 admitting the post to grant-in-aid and accordingly release the salary in her favour by considering the petitioner’s representations dated 20.11.2014 produced as Annexures- H & H1. The petitioner has also sought for a further relief in the nature of a direction to respondents 3 & 4 to not alter the designation of the petitioner.
4. The second writ petition i.e., in W.P.No.36962/2016 was necessitated on account of the order passed by the official respondents pursuant to the order dated 14.09.2015 which came to be passed in the first writ petition. This Court by the said order put the respondent no.1 on notice for having not complied with the earlier final order dated 04.09.2014 passed in W.P.Nos.19863- 64/2013.
5. The above said writ petition, W.P.Nos.19863- 64/2013, came to be preferred by respondents 3 & 4 being aggrieved by the order of the EAT dated 30.01.2013, in the appeal preferred by respondent no.5 herein. The respondent no.5 had approached the EAT being aggrieved by the alleged oral termination of her services in respondent no.4-Institution managed and run by respondent no.3-Mutt. The respondent no.5 had also arrayed the instant petitioner as the party respondent in the proceedings before the EAT. The petitioner despite being notified, omitted to appear and contest the proceedings before the Appellate Tribunal. It is relevant to note that respondents 3 & 4 had contested the appeal and opposed the claim of respondent no.5 tooth and nail and despite their opposition, the Appellate Tribunal was pleased to allow the appeal by the following order:
“The oral order of respondent terminating the services of the appellant with effect from 09.03.2011 is hereby, set aside and the appellant is entitled to reinstatement with full back wages.
Draw award accordingly.”
6. It is relevant to note that though respondent no.5 had challenged the appointment of the petitioner and also sought for setting aside her appointment, the Appellate Tribunal did not grant the relief of direction to respondents 3 & 4 to remove the instant petitioner from service and to remove her name from the list proposed to be forwarded to respondent no.1 for according recognition to her appointment and to admit the post held by her, to grant-in- aid. In a sense, the appeal by respondent no.5 came to be partially allowed. The said order has not been contested by respondent no.5 and has attained finality in so far as it relates to respondent no.5.
7. The respondents 3 & 4 misconstruing the order of the Appellate Tribunal attempted to replace the petitioner’s name with that of respondent no.5, in the proposal for the grant-in-aid and for recognition of appointment and for admitting to grant-in-aid. Aggrieved by the same, the petitioner instituted the first writ petition and sought for the relief to declare that the judgment and award of the Appellate Tribunal rendered in Appeal No.3/2011 is not binding on her and so also the order of this Court in W.P.Nos.19863-64/2013 was not binding on her. The relief as against the order in W.P.Nos.19863-64/2013 is premised on the basis that she is not a party to the said proceedings though the petitioner was initially arrayed as a party to the writ proceedings preferred by respondents 3 & 4, but for reasons best to known to respondents 3 & 4, they proceeded to delete the name of the petitioner with the permission of the Court, from the array of parties and thereafter proceeded to have the writ petition disposed off by a consent order, thereby the order of the Appellate Tribunal came to be upheld.
8. The case of the petitioner is that she has completed her Graduation in Arts and B.Ed. and has also successfully acquired Hindi Shiksha Snatak. That she came to be appointed in respondent no.4-Institution as an Assistant Hindi Teacher by respondent no.3 in its school run at Periyapatna. That she was efficiently discharging her duties without cause for any complaint and that she was imparting tuitions in Hindi language for students from Class-I to Class-X. That respondent no.1 by proceedings dated 04.02.2014 admitted respondent no.4-institution to grant-in-aid and has also recognized the appointment of seven teaching staff and one non-teaching staff as being eligible for grant-in-aid.
9. That while so being the state of affairs, respondent no.5 preferred the appeal in EAT No.3/2011 invoking Section 94 of the Karnataka Education Act, 1993, and contended that she had been discharging duties as Assistant Hindi Teacher in respondent no.4-Institution since 10.06.1996 (if the age as declared by respondent no.5 in the memorandum of appeal before the Tribunal is taken as correct, she would have hardly been 20 years old in 1996). That respondents 3 & 4 terminated her services by an oral order on 09.03.2011. That prior to termination, she had put in 15 years of service and at the time of appointment, she had completed her PUC and also the Hindi Shiksha Snatak course. That when respondent no.4- institution was being considered for grant-in-aid, respondents 3 & 4 deliberately omitted to include her name in the list of teachers to be forwarded to respondent no.1 and included the name of juniors like the petitioner and thereby gave a go-bye to her seniority. That she along with the Headmaster were the senior-most teachers and hence she was entitled to have her name included in the list of teachers who were to be approved for being admitted to grant-in-aid for release of salary grant. It is relevant to note at this stage itself that the very pleading of the petitioner clearly demonstrates that the petitioner was in service in the institution on the relevant date.
10. It is further contended that respondent no.5 questioned the alleged omission to include her name in the list. That respondents 3 & 4 enraged by the same, orally terminated her services. That from 10.03.2011, she was not permitted to sign the attendance register and on the above said basis, she sought for setting aside the order of oral termination and also for a further direction to remove the petitioner’s name from the list of teachers that was supposed to be forwarded to respondent no.1 for admitting them to salary grant. The said appeal came to be resisted by respondents 3 & 4.
11. In the appeal, it was contended by respondents 3 & 4 that respondent no.5 is not even an employee, hence the question of she maintaining the appeal does not arise. It was also contended that the appeal is belated having been filed beyond the period of limitation. It was also contended that respondent no.5/appellant does not possess a degree and was not qualified to be appointed as a Assistant Hindi Teacher. That she was only a guest teacher and that too for a period of two years. That in order to comply with the mandate of the grant-in-aid code, respondents 3 & 4 got issued a publication on 04.07.2008 in Vijaya Karnataka daily newspaper and in response to the said notification, respondent no.5 submitted her application and as she did not possess the qualification specified under G.O.No.ED 59 PMC 2006, B.N.G. dated 06.10.2007, the same came to be rejected. That upon rejection of her application, respondent no.5 voluntarily discontinued her association with the institution as a visiting guest teacher. That the last date of her engagement with the institution was on 10.07.2008. Hence, on the said ground it rejected her claim for seniority.
12. It is relevant to note that the respondents 3 & 4 further asserted the appointment of the instant petitioner and also reiterated that her appointment was in accordance with the Rules and that she possessed the stipulated qualifications under the notification stated supra. In this background, the EAT framed the following issues:
1. “Whether the Appellant proves that she was appointed as an Assistant Hindi Teacher on 10.06.1996 and discharged her duties till 09.03.2011 as contended in the appeal?
2. Whether the Respondents prove that the Appellant was appointed as an apprentice and she is not a permanent employee at the 1st Respondent institution and she was appointed as a Visiting and Guest Teacher on temporary basis during interval of 2006 to 2008?
3. Whether the Appellant proves that she was orally terminated from her service and the same is illegal and arbitrary in violation of principles of natural justice?
4. Whether the Respondents prove that the appeal is not maintainable under Section 96 of Karnataka Education Act?
5. Whether the Appellant is entitled for the relief sought in the appeal?
6. What order?”
13. From a reading of the issues framed by the EAT, it is apparent that the Appellate Tribunal has not entered upon the contentious issue of seniority or the validity of the instant petitioner’s appointment and after considering the various contentions and the material on record, the Tribunal taking note of the failure of respondents 3 & 4 (respondents 1 & 2 before the Tribunal) to let in evidence, proceeded to infer adversely against respondents 3 & 4 and proceeded to allow the appeal with the order extracted supra. Thereafter, W.P.Nos.19863-64/2013 came to be preferred before this Court.
14. During the pendency of the above noted writ petitions, by order dated 03.03.2014, the names of respondents 2 to 4 i.e., the instant petitioner, respondents 1 & 2 came to be struck off from the array of parties.
Thereafter, the writ petition came to be disposed off by a consensual order dated 04.09.2014. The coordinate bench of this Court while disposing off the writ petition by issuing directions observed as under:
“2. I have heard these petitions for some time. Learned counsel for the parties have fairly stated that I need not record reasons for disposing of these writ petitions and they have agreed for the following order:
i) The petitioners shall reinstate the respondent with effect from 30th September 2014 with all other benefits except back-wages as per the order dated 30th January 2013 passed by the Tribunal. In other words, the respondent has agreed to forego her claim over the back-wages with effect from 9.3.2011 till the end of September 2014. The statement to that effect made by the learned counsel for the respondent, is accepted.
ii) The respondent to report to the petitioners on 30th September 2014. The petitioners shall allow her to join duties from 1.10.2014 and pay her regular salary.
iii) It is open to the petitioners to forward a proposal to the Principal Secretary, Department of Education, State of Karnataka, seeking approval of the appointment of the respondent with a copy of this order and copy of the writ petition with annexures including the order of Tribunal dated 30.01.2013 (Annexure-C).
iv) The Principal Secretary of the Department of Education to consider the proposal that would be forwarded by the petitioners seeking approval of the respondent’s appointment as expeditiously as possible and preferably within a period of twelve weeks from the date of receipt of the proposal.
v) The Principal Secretary shall consider the proposal sympathetically and in the light of the judgment of the Tribunal dated 30th January 2013.
vi) In view of the disposal of these petitions, nothing survives in the applications and disposed of, as such.”
15. From a reading of the above, it is apparent that the petitioners therein i.e., respondents 3 & 4 suffered the order by consent and they had agreed to reinstate respondent no.5 and respondent no.5 agreed to forego her back wages from 09.03.2011 to September 2015 and further she was permitted to join duty from 01.10.2014. Respondents 3 & 4 also agreed to forward a proposal to respondent no.1 seeking approval of her appointment and that respondent no.1 would sympathetically consider the same within twelve weeks. On account of the direction suffered under the above order, respondents 3 & 4 attempted to forward a proposal to include the name of respondent no.5 for approval of appointment and release of salary grants. Aggrieved by the same, the petitioner preferred the first writ petition.
16. This court while hearing the said petition took note of the earlier direction to respondent no.1 and granted ten days time to respondent no.1 to comply with the same, failing which it was made clear that respondent no.1 would be liable for contempt. Respondent no.1 taking note of the order dated 14.09.2015 proceeded to hear the parties – respondents 3 to 5 and the petitioner and passed the order approving the appointment of respondent no.5, which inturn led to the filing of the second writ petition impugning the orders of respondent no.1 produced as Annexure-N to the second writ petition.
17. It is contended by the learned Senior Counsel that respondent no.1 erred in rejecting the name of the petitioner and approving the name of respondent no.5 for admission to salary grant. He would contend that even as on today, her order of appointment is not forthcoming. That being the case, the claim of respondent no.5 that she is in employment of respondents 3 & 4 since 1996 is questionable. He would also invite the attention of the Court to the age of respondent no.5 to contend that it is highly improbable that respondent no.5 was selected at the tender age of 20, to impart tuitions to SSLC students who would be aged 14 or 15. He would also contend that even as on today, respondent no.5 has not placed on record any material to demonstrate that she possessed the qualifications stipulated under the Acts and Rules as on 1996. He would also point out the fact that respondent no.5 has not called in question the rejection of her application for employment and would contend that if respondent no.5 was really in service, she would have definitely challenged the proceedings of respondents 3 & 4 rejecting her application for appointment pursuant to the publication dated 04.07.2008. Learned Senior Counsel would contend that, on the contrary the appointment of the petitioner has been validly made and the respondents have even admitted and reiterated this fact even before the Tribunal and hence, the order of respondent no.1 stands vitiated. There being no order of appointment, respondent no.1 could not have issued directions in the nature as set out in the impugned proceedings (Annexure-N).
18. On a query from this Court, respondents 3 to 5 fairly submit that there is no order of appointment is produced, demonstrating her appointment in the year 1996.
19. Be that as it may, it is a question of fact which has been adjudicated and accepted by the Appellate Tribunal. But as rightly contended by the learned Senior Counsel, neither respondent no.5 nor respondent no.3 have placed any material to demonstrate that respondent no.5 possessed the necessary qualifications as on 1996. The appointment of the petitioner having been validly made and the same not being in dispute, respondent no.1 erred in approving the appointment of respondent no.5 and admitting to salary grant.
20. From a reading of the proceedings (Annexure-N1 dated 26.09.2015), it is apparent that respondent no.1 has not even deemed it necessary to put the petitioner on notice. Thereafter, proceeding further respondent no.1 by proceedings of even date and number, proceeded to withdraw the Government Order dated 04.02.2014 bearing G.O.No.ED 15 SOH 2013, whereby the petitioner’s appointment came to approved and was admitted to salary grants. Respondent no.1 erred in passing the impugned order (Annexure-N) despite the categorical assertion by respondents 3 & 4 that it is the petitioner who is actually working in the institution since 2003. It was also brought to the notice of respondent no.1, by respondents 3 & 4, that respondent no.5 had acquired qualification of Shiksha Snatak only in April 1997 and hence, as on the date of the alleged appointment in 1996, respondent no.5 did not possess the requisite qualification.
21. Learned AGA would reiterate the findings rendered by respondent no.1. Learned Counsel for respondents 3 & 4 would also reiterate and would submit that the respondents are merely implementing the orders passed by the various authorities and would oppose granting of any relief to the petitioner. Learned Counsel for respondent no.5 would submit that the petitioner has not called in question the order of the Appellate Tribunal rendered in EAT 3/2011 and the same having become final, respondents 3 & 4 are bound to employ respondent no.5 and hence, three-man committee has accordingly recommended her name and she would support the findings rendered in the impugned orders.
22. Having adverted to the various contentions and having perused the material on record, it is apparent that the entire responsibility for the present imbroglio has to be laid at the doorstep of the respondents 3 & 4, on account of misreading of the various orders passed by respondent no.1. As rightly contended by the learned Senior Counsel, the Appellate Tribunal while granting relief to respondent no.5 did not even deem it necessary to even frame an issue with regard to removal of the petitioner’s name from the list to be forwarded to respondents 1 & 2 for according approval to her appointment and admitting her to salary grant. This assumes relevance in the light of the fact that respondent no.5 had specifically prayed that the petitioner’s name be removed from the list and further direct that her name (respondent no.5) be inserted in the list. Despite the specific prayer, the Tribunal has nowhere considered it necessary to issue a direction and thereby direct respondents 3 & 4 to include her name in the list of teachers whose appointments were forwarded for approval. It is also relevant to note that the EAT merely directed reinstatement of respondent no.5 with back wages. This finding, by this Court, is fortified by the order and directions by the coordinate bench while disposing off W.P.Nos.19863-64/2013 preferred by respondents 3 & 4 impugning the order of reinstatement and back wages awarded by the Tribunal in EAT No.3/2011. This Court while disposing off W.P.No.19863-864/2013 has specifically directed the respondents 3 & 4 – petitioners therein, to forward a proposal to respondent no.1 herein seeking approval of respondent no.5’s appointment and also for admitting her to salary grant and proceeding further this Court by its order dated 04.09.2014 directed respondent no.1 herein to sympathetically consider the case of respondent no.5. It cannot be gainfully argued that in the light of the above directions, it has to be impliedly understood that this Court has set aside the appointment of the petitioner or has in any manner ruled on the eligibility of the petitioner to be continued in appointment nor has it ruled on the correctness of the inclusion of the petitioner’s name in the proposal which was already forwarded by respondents 3 & 4 seeking approval of appointment of seven teaching staff and one non-teaching staff including that of the petitioner.
23. This being the obtaining undisputed facts, respondent no.1 seriously erred in passing the impugned order. It is not in dispute that the appointment of the petitioner had been ratified and approved by respondent no.1 by order dated 04.02.2014. The appointment having been approved and the petitioner having been enabled for salary grants, respondent no.1 could not have passed the impugned order without affording an opportunity to the petitioner, who, as on the date of the impugned order had acquired a vested right, as any cancellation or withdrawal of the G.O. dated 04.02.2014 would result in serious civil consequences to the petitioner and in that view of the matter, the petitioner had acquired a right to be heard and on this short ground also, the impugned order is liable to be set aside as being contrary to the settled principles of natural justice and audi alteram partem. This Court would have been inclined to remit the matter back to respondent no.1, but keeping in view the long pendency and the numerous rounds of litigation, this Court has addressed itself to the facts and disposed off the petitions on merits.
24. The other glaring omission that is conspicuous is none of the authorities be it respondent no.1 or the Tribunal have ruled on the legitimacy of the petitioner’s appointment. Respondent no.1 could not have passed the impugned order of withdrawing the earlier Government Order approving her appointment without holding that she was ineligible to be appointed or without deciding the inter- se claims, on merits. As rightly contended by the learned Senior Counsel, the petitioner had no ground to agitate the correctness of the Tribunal’s order as the award of the Tribunal in no way abridged her rights of employment or the rights acquired by the petitioner pursuant to the proposal forwarded by respondents 3 & 4, for approving her appointment and the consequent approval accorded by respondent no.1 on 04.02.2014. The Tribunal having not ruled on the right of the petitioner to have her name processed for approval and admission to salary grant, respondent no.1 misconstrued in reading the award of the Tribunal as an implied negation of the petitioner’s right. Further, as rightly contended by the learned Senior Counsel the order of the co-ordinate Bench in W.P.Nos.19863-64/2013 also does not bind the petitioner as this Court has neither heard nor notified the petitioner nor has it ruled or set aside the earlier proposal by respondents 3 & 4 recommending the appointment of the petitioner for approval. Respondent no.1 has wholly misread the orders of this Court and the Tribunal and has rendered the erroneous and unsustainable order impugned in the writ petition. Hence, the petitions are required to be allowed.
25. Accordingly, the petitions are allowed. It is held that the order passed by the Appellate Tribunal in EAT No.03/2011 dated 30.01.2013 and the order of this Court dated 04.09.2014 rendered in W.P.Nos.19863-64/2013 do not bind the petitioner or in other words, does not in any manner abridge the rights of the petitioner acquired under the G.O.No.ED 15 SOH 2013 dated 04.02.2014.
Consequently, the G.O.No.15 SOH 2013 dated 26.09.2015 is set aside and the G.O. dated 04.02.2014 stands restored.
There shall be no order as to costs.
Sd/- JUDGE KK CT-HR