IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.3821 OF 2019 (S-PRO) BETWEEN:
DR. SAKEY SHAMU S/O LATE CHINNAIAH AGED ABOUT 54 YEARS WORKING AS PROFESSOR IN CIVIL ENGINEERING BMS COLLEGE OF ENGINEERING BULL TEMPLE ROAD BANGALORE-560 019 R/O NO.17/2, ARR CEE’S MANOR 1ST CROSS S K GARDEN BENSON TOWN POST BANGALORE-560 046 ... APPELLANT (BY DR. SAKEY SHAMU, PARTY-IN-PERSON) AND:
1 . THE STATE OF KARNATAKA REPRESENTED BY PRINCIPAL SECRETARY HIGHER EDUCATION DEPARTMENT M.S. BUILDING SACHIVALAYA DR. AMBEDKAR VEEDHI BANGALORE-560 001 2 . THE PRINCIPAL SECRETARY TO GOVERNMENT LAW DEPARTMENT VIDHANASOUDHA BENGALURU 3 . THE DIRECTOR NATIONAL COMMISSION FOR SCHEDULED CASTES 5TH FLOOR LOKNAYAKBHAVAN NEW DELHI-110 003 4 . BMS ENGINEERING COLLEGE BULL TEMPLE ROAD BENGALURU-560019 REPRESENTED BY ITS CHAIRMAN ... RESPONDENTS (BY SHRI I. THARANATH POOJARY, AGA FOR R1 & R2 AND R3 & R4 DISPENSED WITH) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 05.09.2019 IN W.P.NO.12782/2018 (S-PRO) PASSED BY THIS HON’BLE COURT AND CONSEQUENTLY GRANT THE RELIEFS SOUGHT IN W.P. NO.12782/2018 (S-PRO) BY ALLOWING THE WRIT APPEAL AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the appellant appearing in person.
2. Issue notice to the first and second respondents.
The learned Additional Government Advocate takes notice for the first and second respondents. Considering the facts of the case, notice to the third and fourth respondents is dispensed with.
3. The first and second respondents are the State of Karnataka and Principal Secretary to the State Government in its Law Department. By filing a writ petition, the first and second respondents challenged the proceedings dated 11th September 2017 on the file of the National Commission for Scheduled Castes established under Article 338 of the Constitution of India.
4. The relevant part of the proceedings dated 11th September 2017 reads thus:
“The Commission observed that no action taken report has been submitted by State Government of Karnataka till date. The Commission therefore, recommends that when the BMS Educational Trust has sent a proposal for giving the promotional and other consequentional benefits in accordance with the recommendation of the Commission, the State Government should accord their necessary approval for the promotion to the petitioner w.e.f. 31.03.1995 as Professor and as a consequence for promotion to the post of Principal, BMS College of Engineering. Therefore, the college authorities should issue the order of promotion to the post of Professor w.e.f.31.03.1995 and as Principal, BMS College of Engineering immediately as the National Commission for Scheduled Castes has already heard the matter and passed its recommendation in the previous record notes. Action Taken Report (ATR) in the matter may be intimated to this Commission within 30 days’ time. The Principal Secretary (Higher Education) and Principal Secretary (Law), Government of Karnataka, Director of Technical Education, Government of Karnataka, Member Secretary, BMS Educational Trust and the Chairman, BMS College of Engineering shall appear in person and submit ATR on 23.10.2017 with all necessary approvals. TA for appearing in the Commission should be granted to Dr. Sake Shamu and his absence from College for this purpose may be treated as leave.”
5. The learned Single Judge, by the impugned order, has proceeded to set aside the recommendations/order of the National Commission dated 11th September 2017.
6. The appellant appearing in person submits that the proceeding dated 11th September 2017 records the recommendation of the National Commission which will have to be considered by the State Government in the spirit of clause (7) of Article 338 of the Constitution of India. He also submitted that the State Government ought to have considered the said recommendation.
7. The learned Additional Government Advocate submits that by an earlier judgment of this Court, the issue concerning grant of promotion to the appellant has been concluded and therefore, the learned Single Judge is right in interfering with the proceedings of the National Commission.
8. We have considered the submissions. Careful perusal of the proceedings dated 11th September 2017 shows that the Commission recommended that when the fourth respondent – Trust sends a proposal for giving promotional and other consequential benefits in accordance with the recommendation of the Commission, the State Government should accord necessary approval to the promotion to the appellant with effect from 31st March 1995 as a Professor and as a consequence, for promotion to the post of Principal.
9. Perusal of the sub-clause (b) of clause (5) of Article 338 of the Constitution of India shows that a power is conferred on the Commission to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes. When a report is submitted by the National Commission relating to any matter with which the State Government is concerned, a copy of the report is required to be forwarded to the Hon’ble Governor of the State who is required to cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations. Clause (8) of Article 338 of the Constitution of India confers certain powers of the Civil court on the Commission while inquiring into any complaint referred in sub-clause (b) of clause (5) of Article 338 of Constitution of India. On perusal of Article 338 of Constitution of India it appears to us that the National Commission can submit a report after inquiring into specific complaint received by with respect to the deprivation of rights and safeguards of the Scheduled Castes. Thus, the Commission can inquire into the complaints by taking recourse to the powers under clause (8) of Article 338. But it can only submit a report containing recommendations.
10. What is stated in the report which will be placed before the State Legislative as contemplated in clause (7) of Article 338 of Constitution of India is always in the nature of recommendation. As can be seen from Annexure-A containing the proceeding of 11th September 2017, the relevant part starts with the words “The Commission therefore, recommends that……”. The proceeding refers to the earlier recommendation made by the National Commission on the basis of which the Trustees of BMS Educational Trust resolved to propose and send the appellant’s case for consideration. Therefore, after reading the proceeding/record note of the discussion held on 11th September 2017, which was impugned before the learned Single Judge, it can be seen that it is merely a recommendation to the State Government. It records that recommendation earlier made by the National Commission to the Management of BMS Education Trust was acted upon and that is how further recommendation was made to the State.
11. What is done by the National Commission remains in the realm of recommendation and it is for the State Government to consider the recommendation and decide what action it proposes to take on the recommendation. While taking appropriate decision, the State Government can always consider the earlier decision of this Court on which the first and second respondents are relying upon.
12. As what is mentioned in Annexure-A is merely a recommendation, in our view, it was not necessary for the learned Single Judge to exercise powers under Article 226 of Constitution of India for setting aside the recommendation.
13. Accordingly, we pass the following order:
(i) The impugned order dated 5th September 2019 in W.P.No.12782/2018 is hereby set aside;
(ii) The State Government shall consider the recommendation of the National Commission incorporated in Annexure-A and take appropriate decision on implementation or otherwise of the said recommendation as expeditiously as possible;
(iii) While taking a decision on the question of implementation, the State Government shall taken into consideration of relevant factors including the judgment relied upon by the learned Additional Government Advocate.
(iv) Accordingly, the appeal and the writ petition stand disposed of in terms of the above directions.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN