IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY 2017 BEFORE THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY WRIT PETITION NO. 47180 OF 2011 (S-PRO) Between:
Sri. Nagaraj, S/o Kariyappa, Aged about 56 years, First Division Assistant, V.V. Pura Arts & Commerce Evening College, K.R.Road, Bangalore – 560 004.
(BY Shri V. Lakshminarayana, Senior Counsel for Smt. Shilpa Rani, Advocate) And:
1. State of Karnataka, Rep. by the Principal Secretary to Education, Higher Education Department, Vidhana Soudha, Dr. Ambedkar Road, Bangalore 560 001.
2. The Commissioner for Collegiate Education, Seshadri Road, Bangalore – 560 001.
…PETITIONER 3. The Joint Director of Collegiate Education, Palace Road, Bangalore 560 001.
4. The Director of Collegiate Education, Seshadri Road, Bangalore – 560 001.
5. V.V. Puram Evening College (Degree) of Arts & Commerce, K.R. Road, Bangalore 560 004. Rep. by its Principal.
6. The Vokkaligara Sangha, Educational Trust, V.V. Puram, K.R. Road, Bangalore 560 004. Represented by its General Secretary.
(BY Shri S. Santhosh Narayan, for ... RESPONDENTS Shri S.N. Murthy Associates, Advocate for R5 and 6. Smt. Kavitha H.C., HCGP for R1 to 4.) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 17.3.2006 in appeal no. 4/2004 passed by the Commissioner for Collegiate Education, Bangalore produced at Annexure-V and etc.
This writ petition coming on for hearing, this day, the court made the following:
O R D E R It is the case of the petitioner that he was working as a Second Division Clerk (SDC) in the respondent – Institution since the year 1980. Petitioner had been promoted as a First Division Clerk (FDC) as per the Executive Committee resolution dated 13.05.1989. Hence, he was working as FDC with effect from 1989.
2. The respondent – institution was brought under grant- in-aid with effect from 28.08.1991. The grant-in-aid was also extended to the salary grant to the teaching and non-teaching staff. The petitioner’s name was shown at paragraph 6 in the list of non-teaching staff as SDC, while the petitioner had been promoted as FDC considering his seniority much prior to the grant itself. In order to effect the said correction, the petitioner’s name was forwarded by the respondent – Institution to the Government, for necessary correction in his position as ‘FDC’ instead of ‘SDC’. The same was rejected by the Government by referring a Government order dated ED 196 UPC 2000 (Part) Bangalore, dated 1.3.2001. Hence, he has filed this writ petition.
3. Learned counsel for the petitioner submits that the endorsement issued by the respondent by referring the said Government order, is arbitrary and illegal. Accordingly, it is submitted to set aside the endorsement and direct the respondent to consider the case of the petitioner as F.D.C., with effect from 13.05.1989.
4. The learned counsel for the respondent – institution submits that the resolution promoting the petitioner as F.D.C. on the basis of seniority, was forwarded to the Government. The same was rejected with an observation that the vacant post as per the Government order dated 1.3.2001 referred to above and if any vacancy arising, it is to be filled and to be paid out of the institution fund. It is further submitted that in view of the observations made by the Government in its endorsement in No.JDCE/ROB/66--96-97 (Promotion) JES-3 dated 19.05.2003, the learned counsel submits that the promotion of the petitioner has to be accepted and approved by the Government.
5. The learned Government Advocate submits that the Government order dated 1.3.2001 referred to by the respondent is justifiable. The promotion to the post of FDC granted to the petitioner, is subsequent to the grant, that is, subsequent to 1991. Whereas on the date of grant, the petitioner’s name is shown as against SDC and not FDC. Promotion is to be effected on the basis of common seniority list prepared by the respondent – institution from amongst its institution. No such action has been taken by the respondent.
6. Heard the respective counsel for the parties. Grant of approval is not in dispute and also the name of the petitioner shown in the salary grant is also not in dispute. Considering the length of service and seniority, the petitioner was promoted as FDC as per the endorsement made in the Executive Committee held on 13.05.1989, which is produced at Annexure-“X”. The same is extracted as under:
“In the executive committee held on 13-5-89 Sri. Chidananda and Sri. Nagaraja have been promoted to F.D.C. Kindly request to issue orders.”
7. That means to say, that the petitioner has been promoted in the year 1989. In view of the fact that he was working as FDC since the year 1989, question of revoking the promotion granted to the petitioner, does not arise. The Government order referred to by the respondent is not applicable to the petitioner’s case. Item No.3 of the Government order makes it clear that any post which becomes vacant by virtue of the reservations, resignations, etc., the same has to be filled up purely out of the institution fund. This is to be understood that it is of a prospective nature with effect from 1.3.2001. This Government order is not applicable to the petitioner because, he was promoted with effect from 1989 itself.
8. Under these circumstances, his promotion is to be approved by the respondent – Government. This aspect has not been made clear before the Appellate Authority. Consequently, the Appellate Authority has also not given thought to it. Hence, it is appropriate for this court to direct the respondent to consider the case of the petitioner as FDC with effect from the date of his promotion from 13.05.1989.
Hence, on the basis of the statement that he had been working as such as FDC since the year 1989, the petition is allowed. The endorsement issued by the respondent - Government is quashed. The respondent – Government is directed to reconsider the matter and pass appropriate orders in the light of the observations made in this order. Liberty is reserved to the petitioner to make available the order of promotion referred to above, for the purpose of considering his case for necessary orders.
It is needless to say that the respondents shall not consider the Government order dated 1.3.2001, since it is applicable only prospectively.
Sd/- JUDGE KS