IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO. 3334/2018 (S-RES) BETWEEN:
M BHUVANESHWARI D/O M SUBRAYA BHAT AGED 44 YEARS ASSISTANT TEACHER NAVODAYA HIGH SCHOOL BETTAMPADY VILLAGE-574 259 PUTTUR TALUK D K DISTRICT ... APPELLANT (BY SRI M NARAYANA BHAT, ADVOCATE) AND:
1. THE COMPETENT AUTHORITY & THE DEPUTY SECRETARY (SERVICE) PRIMARY & SECONDARY EDUCATION DEPARTMENT OF EDUCATION M.S. BUILDINGS BENGALURU-560 001 2. THE COMMISSIONER DEPARTMENT OF PUBLIC INSTRUCTIONS NRUPATHUNGA ROAD BENGALURU-560 001 3. NAVODAYA VIDYA SAMITHI (REGD.) NAVODAYA HIGH SCHOOL BETTAMPADY VILLAGE-574 259 PUTTUR TALUK D K DISTRICT REP BY ITS SECRETARY 4. NAVODAYA HIGH SCHOOL BETTAMPADY VILLAGE -574 259 PUTTUR TALUK D K DISTRICT REP BY ITS HEAD MISTRESS 5. SMT. SWETHA DAS W/O SRI SURESH AGED 33 YEARS R/AT "SRINIDHI" URAMALU ROAD CHIKKAMUDNOORU VILLAGE & POST PUTTUR TALUK D K DISTRICT-574 201 ... RESPONDENTS (BY SRI I. THARANATH POOJARY, AGA FOR R-1 & 2; SRI M NAGARAJAN, ADVOCATE FOR R-3 & 4;
SRI HARISH BHANDARY, ADVOCATE FOR SRI S VISHWAJITH SHETTY, ADVOCATE FOR R-5) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 23/10/2018 MADE IN W.P.NO.15490/2015 AND GRANT THE APPELLANT ALL THE RELIEFS PRAYED FOR IN THE WRIT PETITION.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant, the learned Additional Government Advocate appearing for the first and second respondents, the learned counsel appearing for the third and fourth respondents and the learned counsel appearing for the fifth respondent. The appeal is taken up for final hearing.
2. An advertisement was published by the third and fourth respondents inviting applications for appointment of Assistant Science Teacher possessing qualification of B.Sc. with Chemistry, Botany and Zoology (CBZ) as optional subjects. The post was reserved for Category-1. In the advertisement, it is mentioned that in the absence of candidates belonging to Category-1, the post will be filled in by general candidates.
3. Both the appellant and the fifth respondent applied on the basis of the said advertisement. The present appellant was selected. The fifth respondent preferred an appeal before the first respondent by invoking Sections 130 and 131 of the Karnataka Education Act, 1983. The Appellate Authority came to the conclusion that the stand of the third and fourth respondents that they had communicated the date and time of the interview to the fifth respondent cannot be accepted. The Appellate Authority noted that there were four applications received for the post, including the applications by the appellant and the fifth respondent. By the order dated 28th February 2015, the Appellate Authority proceeded to set aside the appointment order given to the appellant and directed the third respondent to issue interview call letters to the candidates belonging to Category-1 and call them for interview after granting them a reasonable time. The said order was challenged by the appellant by filing a writ petition before the learned Single Judge. By the impugned order, the learned Single Judge has rejected the petition.
4. The learned counsel appearing for the appellant submitted that the fifth respondent does not possess the requisite qualifications as she has done B.Sc. in Chemistry, Zoology and Microbiology. His submission is that as the fifth respondent is not at all qualified to apply for the post, the appeal preferred by her could not have been entertained at all.
5. The learned counsel appearing for the fifth respondent supported both the orders. Even the learned counsel appearing for the third and fourth respondents supported the order.
6. We have considered the submissions. The effect of the order dated 28th February 2015 passed by the first respondent is that with a view to give an opportunity to the fifth respondent to appear for the interview, the appointment of the appellant has been cancelled. If the fifth respondent is not at all qualified to apply for the post as per the prescribed qualifications, obviously, the appeal preferred by her could not have been entertained.
7. Therefore, it will be appropriate if by setting aside the impugned orders, the appeal is ordered to be re-heard with a direction to the Appellate Authority to decide whether the fifth respondent is eligible. It follows that if the fifth respondent is not eligible, the question of entertaining a challenge at her instance by way of appeal will not arise.
8. Accordingly, we dispose of the appeal by passing the following order:
(i) The order of the first respondent dated 28th February 2015 in Appeal No.4/2013 is hereby set aside and the said appeal is restored to the file of the first respondent and consequently, the impugned order of the learned Single Judge is also set aside;
(ii) We direct the appellant, the third and fourth respondents and the fifth respondent to appear before the Appellate Authority on 8th August 2019 at 11 a.m. for fixing the date of hearing. The Appellate Authority shall hear and decide the appeal as expeditiously as possible and preferably, within one month from the date on which the parties appear before it. While deciding the appeal, the Appellate Authority shall decide the question whether the fifth respondent possesses necessary qualifications attached to the post;
(iii) We make it clear that we have made no final adjudication on the qualifications possessed by the fifth respondent and the said issue is left open to be decided by the Appellate Authority;
(iv) The appeal is partly allowed on the above terms.
(v) The pending interlocutory applications do not survive and are accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv