Allowed

Shri Gangadharapap B O v. Karnataka Sanskrit University

Karnataka HC15 Dec 2023WP/21896/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed the appointments of two respondents as Deputy Registrar and Section Officer, ruling that working in an aided institution does not qualify for age relaxation under recruitment rules meant for government employees. The petitioner was entitled to challenge as a government employee.

What did the court decide?

Appointments of Deputy Registrar and Section Officer quashed; University directed to reconsider applications of eligible petitioners.

Shri Gangadharapap B O Vs Karnataka… — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC:45831 WP No. 21896 of 2013 C/W WP No. 28172 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION No.21896/2013 C/W WRIT PETITION No.28172/2013 (S-RES)

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IN W.P.No:21896/2013:

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BETWEEN:

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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SHRI GANGADHARAPPA B.O. S/O SRI OMKARAPPA, AGED AOBUT 39 YEARS, RESEARCH ASSISTANT KIKS, UNIVERSITY OF MYSORE, MANASAGANGOTHRI, MYSORE-6. R/AT No.455, 15^TH CROSS, ‘G’ BLOCK, RAMKRISHNANAGAR, MYSORE-22.

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(BY SRI. A.NAGARAJAPPA., ADVOCATE)

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AND:

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KARNATAKA SANSKRIT UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PAMPPAMAHAKAVI ROAD, CHAMRAJPET, BENGALURU-560 018.

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…PETITIONER

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THE BOARD OF APPOINTMENT FOR (NON-TEACHING/MINISTRIAL AND OTHER STAFF) SELECTION, REPRESENTED BY THE REGISTRAR, PAMPAMAHAKAVI ROAD,

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CHAMRAJPET, BENGALURU-560 018.

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SHRI PRAKASH PAGOJI, S/O RUDRAPPA, AGED ABOUT 44 YEARS, DEPUTY REGISTRAR, KARNATAKA SANSKRIT UNIVERSITY, PAMPAMAHAKAVI ROAD, CHAMRAJPET, BENGALURU-560 018.

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…RESPONDENTS

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(BY SRI.ABHINAV.R., ADVOCATE FOR R-1; SRI.C.VENKATESH, ADVOCATE FOR R-2; SRI.S.M.CHANDRASHEKAR, SENIOR COUNSEL FOR SRI.ANIL KUMAR.J.M., ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED PROCEEDINGS OF THE 2^ND RESPONDENT MEETING DATED 21.9.2012, BY WHICH THE 3^RD RESPONDENT WAS SELECTED AND APPOINTED TO THE POST OF DEPUTY REGISTRAR FOR (VIDE ANNEXURE-H), ETC.

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IN W.P.No.28172/2013:

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BETWEEN:

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SMT.SHAILASHREE.R., D/O RAMANNA, AGED ABOUT 33 YEAS, R/AT No.37, ANJENAYASWAMY TEMPLE STREET, MARIAPPA GARDEN, BENSON TOWN, BENGALURU-560 036.

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…PETITIONER

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(BY SRI.A.NAGARAJAPPA., ADVOCATE)

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AND:

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KARNATAKA SANSKRIT UNIVERSITY,

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REPRESENTED BY ITS REGISTRAR, PAMPA MAHAKAVI ROAD, CHAMRAJPET, BENGALURU-560 018.

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BOARD OF APPOINTMENT FOR (NON-TEACHING/MINISTERIAL & OTHER STAFF), SELECTION, REPRESENTED BY ITS REGISTRAR, PAMPA MAHAKAVI ROAD, CHAMRAJPET, BENGALURU-560 018.

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SHIVAMURTHY.M. S/O MARULASIDDAIAH.M AGED ABOUT 42 YEARS, WORKING AS SECTION OFFICER PAMPA MAHAKAVI ROAD, CHAMRAJPET, BENGALURU-560 018.

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…RESPONDENTS

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(BY SRI.ABHINAV.R., ADVOCATE FOR R-1; SRI.C.VENKATESH, ADVOCATE FOR R-2; SRI.J.M.ANIL KUMAR, ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED PROCEEDINGS OF THE 2^ND RESPONDENT MEETING DATED 27.10.2012 BY WHICH THE 3^RD RESPONDENT WAS SELECTED AND APPOINTED TO THE POST OF SECTION OFFICER (VIDE ANNEXURE-K), ETC.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.10.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING

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ORDER

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The petitioner - Gangadharappa in W.P.

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No.21896/2013 has filed this Writ Petition challenging the order appointing respondent No.3 – Prakash Pagoji as a Deputy Registrar (“ DR ”) in the Karnataka Sankrit University. A consequential prayer is sought that respondent No.1 be directed to issue an appointment order by redoing the merit list and to appoint the petitioner to the post of DR, if he is otherwise qualified and eligible to appoint to the said post.

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The petitioner - Smt. Shailashree R. in W.P. No.28172/2013 has filed this Writ Petition challenging the order appointing respondent No.3 – Shivamurthy M. as Section Officer in the respondent No.1 – Karnataka Sanskrit University and for a consequential prayer to redo the merit list and recommend the name of the petitioner to the Syndicate to the post of Section Officer is also sought.

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In both these Writ Petitions, the attack to the order of appointment in favour of the respondents is basically on the ground that both of them did not meet the stipulation regarding age under the C & R Rules and their claim for relaxation of the age limit by 10 years was untenable.

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The petitioner – Gangadharappa contends that Prakash Pagoji, who was appointed as Deputy Registrar was born on 22.06.1968 and was, thus, 44 years old as on the date he made the application, but he ought to have been below 35 years.

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He would, however, be entitled for an enhancement in age by five years, if he had worked in the Union / State Government or that he was not working in a Governmental Undertaking or a local authority in order to be entitled for the enhanced age limit. It is his contention that Prakash Pagoji was admittedly working as an Assistant Professor in the CLY Sanskrit College, an aided institution at Dharwad and an employee of an aided institution cannot be considered as an employee of the Union or State

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Government or a local authority to claim the benefit of an enhancement in the age limit.

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Similarly, it is the case of Smt.Shailashree that Shivamurthy, who had been appointed as a Section Officer, was born on 04.03.1971 and was, thus, 42 years as on the date of the Notification and was, consequently, age barred.

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It is also contended that since the said Shivamurty was working in an aided institution as a Sanskrit Teacher, he would not get the benefit of the enhanced age limit and therefore, his appointment was also illegal.

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Insofar as the case filed by Gangadharappa is concerned, the respondents contended that he has secured the benefit of an enhanced age limit, though he was working in an aided institution and therefore, he cannot be permitted to contend that the appointment of Prakash Pagoji was illegal.

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Learned counsel for Gangadharappa, per contra , contended that he was working as a Research Assistant at the University of Mysore under a Special Scheme and his entire salary was being borne by grant given by the Government under a Special Scheme and therefore, Gangadharappa would have to be considered as an employee of the State Government.

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It is also contended that Gangadharappa was working from 2014 till 2023 as a Research Assistant and therefore, it was clear that he was entitled to the benefit of enhanced age limit.

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It is the case of the University as well as the appointees that the appointees were working in an aided institution and by virtue of the institution in which they were working was admitted to grant-in-aid, they were entitled to be considered as Government employees and therefore, the extension of time limit of 10 years was granted to them.

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It is also the contention of the appointees that the

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petitioners are also the beneficiaries of the enhanced age limit and therefore, they cannot contend that the appointees are age barred. It is contended that the petitioners were also not Government employees as indicated in the Notification and therefore, they cannot be permitted to challenge their appointment.

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In light of the arguments advanced, the main point that would arise for consideration is as to whether the

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respondents (i.e., Prakash Pagoji and Shivamurthy - the successful appointed candidates) were eligible to be appointed.

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It is not in dispute that Prakash Pagoji was aged 44 years as on the date of the Notification and Shivamurthy was aged 42 years as on the date of the application. The C

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& R Rules which have been framed by the respondent - University stipulates 35 years as the maximum age limit for the appointment of a general candidate into the services of the University.

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Rule 9 sub-clause (3) of the Statutes governing the Cadre and Recruitment of the Employees of Karnataka Sanskrit University, however, grants an exemption to the said limit and the same reads as follows –

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“(3) Notwithstanding anything contained in sub-rule (1) the maximum age limit for direct recruitment shall be deemed to be enhanced in the following to the extent mentioned, namely;

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(a) in the case of candidate who is or was holding a post under the University or Government or local bodies (Corporations/City Municipal Councils or Undertakings of Government) by the number of years he/she is or was holding such post; the number of years holding such post or 10 years, whichever is less correspondingly age will be relaxed.

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(b) in the case of candidate who is an exservicemen discharged from service by reason of demobilization, retrenchment or retirement, by the number of years of military service rendered by him shall be enhanced.”

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As could be seen from this, any candidate who was holding a post under the University or the Government or the local bodies for a number of years, the number of years that the candidate held the post, or a maximum of ten years of age relaxation would be given.

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It is, thus, clear that a candidate working under the University or the Government or the local bodies such as Corporations / City Municipal Councils or Undertakings of the Government would be entitled for higher age limit corresponding to the number of years they had rendered their services there, subject to the maximum of ten years.

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It is to be borne in mind that the exemption granted

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is in respect of the age limit in the specified category of candidates i.e., candidates who worked either in a university or under the government or a local body. The exemption will have to be considered strictly and cannot be enlarged to bring within its purview Institutions other than those prescribed. As could be seen from Clause 9(a), the exemption is specifically to those employees who are

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directly working under the University or the Government or a local body. This exemption cannot be extended to an employee who works in a private institution which is admitted to grant.

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It is to be borne in mind that a private educational institution would always be a private institution even if it was receiving grant-in-aid. It is, no doubt, true that on receiving grant-in-aid, the private institution would be subjected to a certain degree if controlled by the Government. However, the said control by itself would not translate into the Government becoming the employer.

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It is also to be borne in mind that even if the appointment and the removal would be subject to the approval of the Government, the contract of appointment between an employee of a private educational institution and its employee would always essentially remain, and the contract of employment between a private entity and an individual cannot be equated to an employment of a person under a University or Government or local bodies.

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The argument of the University that it was entitled to consider even those candidates who were working in an aided institution, cannot be accepted since, as stated above, the exemption clause would always have to be construed strictly and an exemption clause cannot be enlarged to the convenience of a particular individual. The statutes specifically provide for an enhanced age limit only to persons who were under the direct employment of a University or a Government or a local body, and this benefit cannot be utilized by persons merely because their employer was getting grant-in-aid from the Government.

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If the post held by Prakash Pagoji in a private aided institution cannot be construed as a post that was held by him under the University or Government or local bodies, obviously, he would not be entitled for an enhanced age limit of 45 years, and consequently, his appointment as Deputy Registrar cannot be sustained.

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The learned Senior Counsel put forth an argument

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that Gangadharappa was also working in an aided

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13 -

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institution and therefore, he had taken the benefit of enhanced age limit while applying and he cannot, therefore, turn around and contend that the appointment of Prakash Pagoji was illegal.

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Learned counsel appearing for Gangadharappa has filed a Memo dated 10.10.2023 and along with it, he has also produced an order dated 15.06.2011, by which he has produced a service certificate dated 05.07.2023 issued by the Kuvempu Kannada Adhyayana Samsthe, Manasagangotri, Mysuru, which is a Department of the University of Mysuru and in this, it is stated that the petitioner was appointed as a Research Assistant on 26.05.2011 and by orders dated 26.05.2011 to 25.05.2012, 29.05.2012 to 28.05.2014 and he had been working from 03.06.2014 till 05.07.2023.

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The counsel has also produced a corrigendum, in which it is stated that the petitioner had been appointed as a Research Assistant under a Special Scheme for working

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in Vishwakosha and for the purposes of his pay the head

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of account was changed, and it is also indicated therein that his entire salary was paid by the Government.

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It is, therefore, clear that Gangadharappa will have to be considered as an employee of the University and not that of an aided institution. This argument, therefore, that Gangadharappa was not entitled to challenge the recruitment cannot be accepted. As a consequence, reliance placed upon the decision of the Hon’ble Supreme Court rendered in the case of R.K. Jain¹ to the effect that only an aggrieved person, in service jurisprudence, can canvass the legality or correctness of an action, would not be of any benefit.

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In the case of Smt. Shilpashree also, respondent No.4 - Shivamurthy was not eligible to apply since he was aged 42 years. However, it is his contention that he was working in an aided institution and therefore, he would get the benefit of an enhanced age limit. As already held above, an employee of an aided institution cannot equate

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1 R.K. Jain v. Union of India, (1993) 4 SCC 119.

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his employment to that of an employment under the Government and therefore, the appointment of

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Shivamurthy cannot also be sustained.

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As a consequence, the appointment of Prakash Pagoji as Deputy Registrar and of Shivamurthy as a Section Officer cannot be sustained and same are quashed .

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The respondent – University is directed to consider the applications of the petitioners along with other applicants and appoint the most meritorious among them. The University shall consider only those candidates (including the petitioners) who are eligible keeping in mind the decision rendered in this case relating to the nature of employment.

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30. Writ Petitions are, accordingly, allowed .

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Sd/JUDGE

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hnm

Shri Gangadharapap B O v. Karnataka Sanskrit University

Case brief

What is this about?

What did the court decide?

Shri Gangadharapap B O v. Karnataka Sanskrit University

Case brief

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