IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 19TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.3476 OF 2015 (S-PRO) BETWEEN:
SRI D NIRANJANA SON OF LATE SUBBARAYAPPA AGED ABOUT 51 YEARS LECTURER IN ENGLISH KASTURBA GIRLS PRE UNIVERSITY COLLEGE SHIMOGA-577 201 RESIDING AT “SRI KAMAKSHI” 2ND MAIN, 5TH CROSS, ASHOKA NAGARA (ARB COLONY) SHIMOGA-577 201. ... APPELLANT (BY SRI. C.M. NAGABHUSHANA, ADVOCATE FOR SRI. K S NARAYANA SWAMY, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY-II DEPARTMENT OF EDUCATION (HIGHER EDUCATION) M.S.BUILDING BENGALURU -560 001.
2. THE DIRECTOR STATE EDUCATIONAL RESEARCH AND TRAINING NO.4, 100 FT. RING ROAD BANASHANKARI 3RD STAGE BENGALURU -560 085.
3. THE SECRETARY NATIONAL EDUCATION SOCIETY BALARAJ URS ROAD SHIMOGA-577 201.
4. SRI S R YESHWANTHA KUMAR SON OF S RAMAPPA, AGED ABOUT 38 YEARS ASSISTANT TEACHER KASTURBA GIRLS PU COLLEGE (HIGH SCHOOL DIVISION) SHIMOGA-577 201 RESIDING OF “SIDDARAMA NILAYA” 6TH CROSS, RAJENDRANAGARA SHIMOGA-577 202.
5. THE DIRECTOR OF COLLEGIATE EDUCATION IN KARNATAKA PALACE ROAD BENGALURU -560001. ... RESPONDENTS (BY SRI. S.S. MAHENDRA, AGA. FOR RESPONDENT Nos.1, 2 AND 5 SRI.M NARAYAN BHAT, ADVOCATE FOR RESPONDENT No.3 RESPONDENT No.4 IS SERVED) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No. 59792/2014 DATED 31/07/2015.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 31.07.2015 passed by the learned Single Judge in Writ Petition No.59792 of 2014, by which the petition was dismissed, the writ petitioner is in appeal.
2. Petitioner filed the instant writ petition under Articles 226 and 227 of the Constitution of India praying for the following reliefs :-
“(a) ISSUE a Writ in the nature of Certiorari to quash the Order bearing No.ED 93 USV 2014 dated 8-12-2014 passed by the 1st Respondent vide Annexure-S;
(b) ISSUE a Writ in the nature of Mandamus directing the Respondents No.1 to 3 to consider the case of the Petitioner for appointment through Promotion to the post of Lecturer in Physics Methodology at the National B.Ed. College, Shimoga, being run under the Management of the 3rd Respondent, in accordance with law.”
3. Petitioner states that he is the holder of Master Degree and Degree of Master of Philosophy. He is working as lecturer in English at Kasturba Girls Pre- University College, run by the 3rd respondent – National Education Society, having been appointed on 09.06.2008. It is stated that prior to his appointment as Lecturer, petitioner was working as Assistant Master in the National High School run by the 3rd respondent since 1988, till his appointment as Lecturer in the year 2008. It is further stated that the 3rd respondent runs various Educational Institutions including National B.Ed. College, Shimoga, wherein the post of lecturer fell vacant. It is the case of the petitioner that having regard to the length of service and the qualification, he is entitled for promotion to the said post of Lecturer in Physics Methodology. It is the case of the petitioner that without considering his case, the 3rd respondent passed resolution to promote the 4th respondent – Sri S.R. Yeshwantha Kumar. Promotion was given to 4th respondent and subsequently withdrawn. Both the petitioner as well as 4th respondent are before this Court seeking promotion in several writ petitions. This Court by order dated 17.10.2012 in Writ Petition No.40085 of 2012 and Writ Petition No.29254 of 2012 filed by the 4th respondent and petitioner respectively, directed the 1st respondent – State of Karnataka, Department of Education, Bangalore, to hear both the parties and to pass appropriate orders in accordance with law. The 1st respondent by its order dated 12.09.2013 (Annexure –Q) directed the 4th respondent herein to report for duty as Assistant Teacher at Kasturba Girls Pre-University College (High School) Shimoga, and further directed the 3rd respondent herein to fill up the post of Lecturer in the National B.Ed College, Shimoga, by direct recruitment as per UGC Guidelines.
4. Aggrieved by the order of the 1st respondent dated 12.09.2013 both petitioner and 4th respondent herein filed writ petition Nos.46568 of 2013 and 44574 of 2013 respectively. This Court by order dated 20.10.2014 quashed the order of the 1st respondent dated 12.09.2013 and remitted the matter again for consideration afresh. The 1st respondent on reconsideration and after hearing parties to the appeal passed order dated 08.12.2014 rejecting the request of the petitioner for promotion to the post of Lecturer in the National College of Education, directing direct recruitment on the basis of merit. Aggrieved by the said order, the petitioner filed the instant writ petition. The learned Single Judge rejected the writ petition holding that the 1st respondent – State of Karnataka, has passed order giving cogent and legal reasons and has given a finding that the petitioner is not in the cadre of Secondary School Assistant (Grade I), therefore, he is not eligible for promotion. Aggrieved by the same, the writ petitioner is in appeal.
5. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the appeal papers.
6. The learned counsel for the appellant submits that the petitioner is eligible for promotion to the post of Lecturer in National B.Ed College run by 3rd respondent. He is the senior most Lecturer and he has the requisite qualification prescribed for promotion. The learned counsel for the appellant relies on Serial No.27 of schedule to Karnataka Education Department Services (Department of Public Instruction) (Recruitment) Rules 1967, and contends that the petitioner would be eligible for promotion. It is further submitted that the post is a promotional post and the finding of the 1st respondent that it is a direct recruitment post, has no basis.
7. Per contra, learned counsel for the respondents submits that the 1st respondent on examination of entire material on record by his reasoned order rejected petitioner’s request for promotion, which needs no interference. Moreover, the Lecturer post in B.Ed. College would have to be filled up as per the UGC Guidelines.
8. On going through the order of the learned Single Judge as well as the order passed by the 1st respondent (Annexure-S), we are of the view, that the order is neither perverse nor erroneous so as to interfere. Admittedly, the petitioner was initially appointed as Assistant Master in the National High School run by the 3rd respondent in the year 1988. Thereafter, the petitioner was appointed as Lecturer in English at Kasturba Girls Pre-University College (College Division), Shimoga on 09.06.2008. The cadre of Assistant Master, Secondary School Assistant Grade – I and the cadre of Lecturer are different and distinct. Admittedly, the 3rd respondent runs many Educational Institutions. Presently, the petitioner is working as lecturer in Pre- University College run by the 3rd respondent, whereas he is seeking promotion as Lecturer in National B.Ed College, Shimoga, entirely a different Institution run by the 3rd respondent. The Learned counsel for the petitioner relied on Serial No.27 of Schedule to Karnataka Education Department Services (Department of Public Instructions) (Recruitment) Rules 1967, which reads as follows :-
27. Gazetted Lecturers in Government Colleges of Education and Gazetted Lecturer, Graduates’ Basic Training College.
(i) By transfer of a suitably qualified Class II Officer in the Headmaster/Headmistresses Cadre indicated under Sl.No.18 [Headmaster/ Headmistresses (Ex-Municipal High Schools) and Headmaster/Headmistresses (Ex-Taluk Development Board and Ex-Town Panchayat Committee High Schools] including those transferred to other Class II posts of:-
(a) Assistant D.P.I., Hindi Education;
(b) Assistant D.P.I., Commerce Education;
(c) Principals of Samskrita Colleges;
(d) Gazetted Lecturers in Government College of Physical Education;
(e) Subject Inspectors attached to the Offices of the Divisional Deputy Directors of Public Instruction;
(f) Counselling Instructors, State Bureau of Educational and Vocational Guidance;
(g) Superintendents, Hindi Teachers’ Training Colleges;
(h) Superintendents, School for the Deaf and Blind boys and School for the Blind Boys.
(ii) By promotion on the basis of Seniority-cum-merit from among the duly qualified persons from the Secondary School Assistants (Grade-I) Cadre [Secondary School Assistants (Grade-I) (Ex- Municipal High Schools) and Secondary School Assistants (Grade-I) (Ex-Taluk Development Board and Ex- Town Panchayat Committee High School] including those For Direct Recruitmen-
(i) An Honours or Master’s Degree or a I Class Bachelor’s Degree of a recognized University and (ii) M.Ed. of a recognized University;
(iii) Should pass the following Departmental Examinations within the period of Probation-
(a) General Law:- Papers I and II (b) Accounts Higher Age.-Not more than 35 years for direct recruits Officers of Education Department not more than 40 years of age may also apply, if they have the minimum qualifications. Probation.-Two years transferred to other categories of.-
(a) Lecturers in Government Hindi Training Colleges (Grade-I);
(b) Hindi Pandits in Hindi Vidwan Course in Government Training College for Men and Lecturers in Government Hindi Training Colleges (Grade-II);
(c) Chief Inspector or Samskrita Schools;
(d) Literature Assistants in Government Samskrita Colleges;
(e) Superintendent in Musix Education;
(f) Physical Education Teachers (Grade-I) and Inspectors of Physical Education;
(g) Science Consultants and Post-Graduate Science Teachers in Government High Schools, Higher Secondary Schools and Multipurpose high Schools, (h) Technical Assistants in Educational and Vocational Guidance Bureau;
(i) Research Assistants in Educational and Vocational Guidance Bureau;
(j) Assistant Lecturers in College of Education and Research Assistants in Educational Research Bureau;
(k) Assistant Lecturers in Government College of Physical Education, Superintendents and Assistant Superintendents for Physical Education and Physical Directors in Teachers’ Colleges;
(i) Statistical Assistants and Planning Assistants from the Secondary School Assistants Cadre, if no suitable and qualified person is available for appointment by method (i) above.
(ii) By direct recruitment, if no qualified and suitable person is available for appointment by methods (i) and (ii) above.
For promotion or transfer.- Qualification and experience.-
(1) Same as for direct recruitment.
(2) Should have passed the following Departmental Examinations.-
(a) General Law.- Papers I and II;
(b) Accounts Higher Age.-No limit. Desirable qualification for Direct Recruitment, Promotion and Transfer.-
In addition to the above qualification, training in Basic Education is desirable for the post of the Lecturer, graduates Basic Training College.
9. On going through the above rule, which the 1st respondent has extracted in his order, it is seen that Gazetted Lecturers in Government Colleges of Education and Gazetted Lecturers in Graduates Basic Training College is to be filled up, by promotion and by direct recruitment, if there are no qualified and suitable persons available for appointment by methods stated therein. Further, the above Rule indicates that promotion should be made on the basis of seniority-cum-merit from the duly qualified persons from amongst the Secondary School Assistants (Grade I). Admittedly, the petitioner is not in the cadre of Secondary School Assistants (Grade I), the petitioner is in the cadre of Lecturer. Therefore, the above Rule would not assist the petitioner in any manner. Moreover, the Lecturer in B.Ed. Colleges is covered by UGC Guidelines and Recruitment shall have to be made as per the UGC Guidelines. UGC Guidelines provides for Career Advancement Scheme and under Government Order dated 04.05.1994 wherein UGC pay scales have been made applicable to certain of the Colleges in the State. Under the said Government order cadres of Lecturer, Lecturer– Senior scale and Lecturer Selection Grade have been designated. The 1st respondent by his reasoned order has come to the conclusion that the vacant post in National B.Ed College run by the 3rd respondent is to be filled up by direct recruitment, which requires no interference. The learned Single Judge on perusal of the 1967 Rules and the UGC Guidelines by his reasoned order dismissed the writ petition. Writ petitioner has not made out any ground to interfere with the impugned order dated 31.07.2015 passed by the learned Single Judge in Writ Petition No.59792 of 2014. Accordingly, this writ appeal is dismissed as devoid of merits. Consequently, pending I.A.No.1 of 2018 is dismissed.
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JUDGE JUDGE NG*CT:bms