IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. L.NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE P.S. DINESH KUMAR WRIT APPEAL NO. 4218/2017 (S-RES) BETWEEN:
1.THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION M.S.BUILDING, BANGALORE - 560 001 2.THE UNDER SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT (COLLEGIATE EDUCATION) M.S.BUILDING BENGALURU - 560 001 3.THE COMMISSIONER OF COLLEGIATE EDUCATION PALACE ROAD BENGALURU - 560 001 4.THE DIRECTOR OF COLLEGIATE EDUCATION PALACE ROAD, BENGALURU - 560 001 5.THE JOINT DIRECTOR DEPARTMENT OF COLLEGIATE EDUCATION MAHARANI’S COLLEGE CAMPUS MYSORE - 570 005 (BY SRI S S MAHENDRA, AGA) ... APPELLANTS AND 1.PRAVEEN SALDANHA S/O SALDANHA J A AGED 41 YEARS ASSISTANT PROFESSOR IN ECONOMICS ST. PHILOMENA’S COLLEGE BANNIMANTAPA MYSORE - 570 015 2.MYSORE DIOCESAN EDUCATION SOCIETY ST. JOSEPH’S COMPLEX JAYALAKSHMIPURAM MYSORE - 570 015 REPRESENTED BY ITS SECRETARY 3.THE PRINCIPAL ST PHILOMENA’S COLLEGE BANNIMANTAP MYSORE - 570 015 ... RESPONDENTS (BY SRI M S VARADARAJAN, ADVOCATE FOR R-1; R-2 & 3 ARE SERVED BUT UNREPRESENTED) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 01/03/2017 PASSED IN WRIT PETITION NO.49592/2012.
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the order dated 01.03.2017 passed by the learned Single Judge in W.P.No.49592/2012.
2. The brief facts of the case are, respondent No.1 herein (petitioner) was appointed as Lecturer in Economics in respondent No.3 –college in terms of the appointment order dated 05.01.2001 issued by respondent No.2 and respondent No.1 reported for duty w.e.f. 06.01.2001. Respondent No.3 addressed a letter dated 08.01.2001 to appellant No.5 seeking approval of the appointment of respondent No.1 as Lecturer in UGC pay scale. The said request was rejected on 14.06.2001. Against such rejection, respondent No.1 filed W.P.No.31108/2001, which was allowed by remitting the matter to the Government for reconsidering the proposal of respondent No.2 for approval of appointment of respondent No.1 in the light of Government Order dated 21.07.1992. The order passed in the said writ petition was taken in appeal by the State Government in W.A.No.3271/2002, which came to be dismissed. In the meantime, a contempt petition was filed by respondent No.1 and during pendency of the contempt petition, appellant No.4 passed an order approving the appointment of respondent No.1 with grant-in-aid w.e.f. 25.01.2006. However, after several rounds of litigation, appellant No.1 passed an order dated 11.09.2012 granting the benefit of UGC Pay scale to respondent No.1 with w.e.f. 25.01.2006. Not being satisfied, respondent No.1 filed W.P.No.49592/2012 seeking a direction to the Government to approve his appointment in the UGC pay scale w.e.f. 06.01.2001 and also for consequential reliefs. The said writ petition was allowed by setting aside the order dated 11.09.2012 insofar it reckons the service of respondent No.1 w.e.f. 25.01.2006 and substituting the said date as 06.01.2001. Against the said order passed by the learned Single Judge, the present appeal has been filed.
3. Learned Additional Government Advocate appearing for the appellants submits that respondent No.2, though a minority institution, has not obtained prior permission from the Government before filling up the post of Lecturer. Since the institution has not followed the proper procedure, the appointment of respondent No.1 is arbitrary for non-compliance of Articles 14 and 16(1) of the Constitution of India. He further submits that the appointment of respondent No.1 is contrary to the Government Order dated 01.03.2001 since there was a total ban on appointment by direct recruitment and any such appointment will be treated as non- grant-in-aid post. In the instant case, respondent No.2 – institution had not taken prior permission from the Government for filling up the post and therefore, it is to be treated as non-grant-in-aid post. He also submits that the learned Single Judge ought not to have directed grant of UGC pay scale to respondent No.1 w.e.f. 06.01.2001 and the effective date for consideration should have been left to the decision of the State Government. With these grounds, he submits that the impugned order is liable to be set aside.
4. Learned Additional Government Advocate has relied on a judgment of the Hon’ble Supreme Court in the case of KOLAWANA GRAM VIKAS KENDRA vs STATE OF GUJARAT AND OTHERS (Civil Appeal No.7595/2004 [para 6]) to contend that any appointment made without approval from the Government is to be considered as non-grant-in-aid post.
5. On the other hand, learned counsel for the respondent No.1 has justified the order of the learned Single Judge. He submits that respondent No.1 has approached this Court on four occasions and in all the occasions, the action of the appellants has been negatived by this Court. He further submits that similarly situated 35 Lecturers have been granted the benefit of approval of appointment in the UGC pay scale from the date of their initial appointment as per Annexure-N, upon a letter dated 02.09.1999 addressed from the Under Secretary, Department of Higher Education to the Commissioner for Collegiate Education. He also submits that the benefit extended to similarly situated lecturers has to be extended to respondent No.1 also. On these grounds, he prays for dismissal of the appeal.
6. We have heard learned counsel for the parties and gone through the appeal papers.
7. The contention of learned counsel for the appellants that respondent No.2, which is a minority institution, has not taken prior permission from the Government before filling up the post has some force. However, since similarly situated persons have been extended the benefit of UGC from the date of their initial appointment, it would be appropriate to extend similar benefit to respondent No.1.
8. The crux of the matter is with regard to reckoning the date of appointment of respondent No.1 in the UGC pay scale w.e.f. 06.01.2001 or w.e.f. 25.01.2006. In the peculiar circumstances of this case, if the effective date is taken as 25.01.2006, it will constitute major flaw in the procedural aspects. The date of appointment of respondent No.1 is 06.01.2001 and therefore, the Government Order dated 13.02.2001 relied on by learned counsel for the appellants has no effect on his appointment. In the circumstances, we are of the view that the direction issued by the learned Single Judge to reckon the service of respondent No.1 w.e.f. 06.01.2001 has to be upheld for the reason that respondent No.1 has approached this Court on five occasions, including the present one and on the earlier four occasions, this Court, for one reason or the other, was of the view that the effective date has to be 06.01.2001. Further, though the appellants rejected the request of respondent No.1 on the ground that respondent No.2 has not taken prior permission from the Government before appointing him but, in the facts and circumstances, to put an end to the long drawn litigation, we confirm the order passed by the learned Single Judge. However, we make it clear that this order shall not be treated as a precedent in any other case.
Accordingly, the appeal is dismissed.
In view of dismissal of this appeal, I.A.No.2/2017 does not survive for consideration and it is also dismissed.
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ACTING CHIEF JUSTICE Sd/- JUDGE bkv