Dismissed

The Principal Secretary v. Sri. Syed Mansoor Khader

Karnataka HC3 Sept 2024WA/91/2024

Case brief

AI extract

What is this about?

State appealed against a Single Judge's order granting a non-teaching employee salary grant from 09.06.1999 rather than 22.11.2004, having been omitted from a government order covering 1116 staff. The Division Bench upheld the appellate authority's order and dismissed the appeal.

What did the court decide?

Six weeks granted to accord salary grant benefit to the petitioner from 09.06.1999; contempt proceedings disposed of.

The Principal Secretary Vs Sri. Syed Mansoor Khader — Service and Employment | Karnataka HC (2024)

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NC: 2024:KHC:35947-DB WA No. 91 of 2024 C/W CCC No. 956 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE

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AND

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THE HON'BLE MR. JUSTICE K. V. ARAVIND WRIT APPEAL NO. 91 OF 2024 (S-RES)

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C/W

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CCC NO. 956 OF 2023 (CIVIL)

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IN WA No. 91/2024

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BETWEEN:

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THE PRINCIPAL SECRETARY (PRIMARY AND SECONDARY EDUCATION), DEPT. OF EDUCATION, M.S. BUILDING, BENGALURU - 560 001.

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Digitally signed by PRABHAKAR SWETHA KRISHNAN Location: High Court of Karnataka

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THE APPELLATE AUTHORITY AND DEPUTY SECRETARY TO GOVT. (SERVICES) DEPT. OF EDUCATION, (PRIMARY AND SECONDARY EDUCATION) M.S. BUILDING, BENGALURU - 560 001.

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THE COMMISSIONER DEPT. OF PUBLIC INSTRUCTIONS, BENGALURU – 560 001.

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THE DIRECTOR (SECONDARY EDUCATION) OFFICE OF COMMISSIONER DEPT. OF PUBLIC INSTRUCTIONS, BENGALURU – 560 001.

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NC: 2024:KHC:35947-DB WA No. 91 of 2024 C/W CCC No. 956 of 2023

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THE DEPUTY DIRECTOR (ADMINISTRATION) DEPT. OF PUBLIC INSTRUCTIONS, DAVANAGERE DISTRICT - 577 001.

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THE BLOCK EDUCATION OFFICER DEPT. OF PUBLIC INSTRUCTIONS, DAVANAGERE NORTH ZONE, DAVANAGERE DISTRICT - 577 001.

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…APPELLANTS

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(BY SRI RUBEN JACOB, AAG A/W SMT. NILOUFER AKBAR, AGA)

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AND:

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SRI SYED MANSOOR KHADER S/O. SYED DASTAGIR, AGED ABOUT 60 YEARS, WORKING AS FDA CUM ACCOUNTANT, S.K.A.H COMPOSITE PRE-UNIVERSITY COLLEGE, (HIGH SCHOOL SECTION) BASHA NAGAR, DAVANAGERE.

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…RESPONDENT

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(BY SRI BASAVARAJ R. BANNUR, ADVOCATE)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE ORDER DATED 12/06/2023 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN WRIT PETITION NO.25364/2019 & ETC.

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IN CCC NO. 956/2023 (CIVIL)

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BETWEEN:

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SYED MANSOOR KHADER S/O. SYED DASTAGIR AGED 62 YEARS WORKING AS A.F.D.A CUM ACCOUNTANT S.K.A.H COMPOSITE PRE-UNIVERSITY COLLEGE

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NC: 2024:KHC:35947-DB WA No. 91 of 2024 C/W CCC No. 956 of 2023

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(HIGH SCHOOL DAVANAGERE) BASHA NAGAR DAVANAGERE

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...COMPLAINANT

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(BY SRI. BASAVARAJ R. BANNUR., ADVOCATE)

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AND:

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SMT. B. B. KAVERI COMMISSIONER DEPARTMENT OF PUBLIC INSTRUCTIONS NRUPATUNGA ROAD AMBEDKAR VEEDHI K.R. CIRCLE (NEAR RBI OFFICE) BANGALORE – 560 001. ...ACCUSED

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THE STATE OF KARNATAKA REP. BY PRINCIPAL SECRETARY (PRIMARY AND SECONDARY EDUCATION) DEPARTMENT OF EDUCATION M.S. BUILDING BANGALORE – 560 001.

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... PRO FORMA RESPONDENT

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(BY SRI RUBEN JACOB., AAG A/W SMT. NILOUFER AKBAR, AGA )

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THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF THE CONTEMPT OF COURT ACT, 1971 PRAYING TO PUNISH THE ACCUSED FOR COMMITTING THE CONTEMPT OF COURT FOR DISOBEYING THE ORDER PASSED BY THIS HON’BLE COURT DATED 12.06.2023 PASSED IN W.P. No.25364/2019 & ETC.

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THIS APPEAL & CCC COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2024:KHC:35947-DB WA No. 91 of 2024 C/W CCC No. 956 of 2023

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CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA and

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HON'BLE MR JUSTICE K V ARAVIND

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ORAL JUDGMENT

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(PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA)

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Heard learned Additional Advocate General

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Mr. Ruben Jacob assisted by learned Additional Government Advocate Smt. Niloufer Akbar for the appellant-State and its authorities and learned advocate Mr. R. Basavaraj Bannur for respondent-original petitioner.

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The challenge in this appeal preferred under Section 4 of the Karnataka High Court Act, 1961 at the instance of State is addressed to the judgment and order dated 12.06.2023, whereby learned Single Judge allowed the writ petition. The order dated 29.05.2019 passed in Review Petition No.147 of 2014 came to be set aside, whereas the order dated 22.04.2015 in Appeal No.147 of 2014 passed by the Deputy Secretary to the Government (Services, Primary and Secondary Education Department), Government of Karnataka, Bengaluru, came to be confirmed.

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The issue involved in the controversy is about allowing the benefit of salary grant to the petitioner during the period from

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09.06.1999 to 22.11.2004. The order of the competent authority dated 22.04.2015 was upheld by learned Single Judge by directing to consider the appointment of the petitioner with salary grant from 09.06.1999 and to accord such benefit for the period from 09.06.1999 to 22.11.2004. The claim of the petitioner that he was entitled to such benefit from 09.06.1999 in respect of his services and not from 22.11.2004 was accepted.

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3.1 Noticing the basic facts, the original petitioner-respondent herein was appointed as First Division Assistant on 27.05.1989 in Millath Educational and Welfare Society, Davanagere. The appointment of the petitioner came to be approved by the Government as per the order dated 28.12.1989, but it was without salary grant. It appears that the State Government subsequently passed the order dated 09.06.1999, whereby 1116 number of nonteaching staff were admitted for salary grant. The petitioner was not given the benefit from the said date namely, 09.06.1999, but his case was considered for such grant with effect from 22.11.2004.

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3.2 The original petitioner-respondent herein had an occasion to file Writ Petition No.3521 of 2006 along with others seeking declaration that the respondents were liable to extend the benefit of

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salary grant to the petitioners including the present petitioner with effect from 09.06.1999 and the action in not extending such benefit from the said date was arbitrary and illegal. The said petition was disposed of by the order dated 09.07.2008. The petitioners, who included the present one, were permitted to submit detailed representation to the competent authority seeking entitlement for salary grant benefit for the said period from 09.06.1999 to 22.11.2004.

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3.3 Noticeably, while remitting the case as above to the competent authority, this Court made the following observations extracting paragraph 4 from the said order dated 09.07.2008,

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“After careful perusal of the materials available on record, what it emerges is that, in fact, the Government has approved the grant in respect of 1116 non-teaching staff appointed between 1.1.1990 to 1.6.1992 and the appointment of these petitioners were also fall within the said period. Therefore, the authority ought to have called for the report from the schools/colleges where these petitioners are working. But, inadvertently or by oversight, their names have not been included for extending the benefit of the government order dated 9.6.1999 for no fault of them and when the approval has been accorded by the Government, it ought to have called for details from the persons who have not been extended the benefit and contrary, as per the representation dated 16.8.2005, first respondent has issued the impugned communication dated 10.10.2005 stating that these petitioners are entitled

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for grant from 22.11.2004 and not from 9.6.1999 without any justification or without assigning any reasons.”

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3.4 The Court proceeded to observe that the denial of the benefit was without any reference to the particulars and it was not known as to why the petitioners were considered to be not entitled for extension of the benefit. Consequently, with such reasoning, the impugned communication reflecting the decision of denial of the benefit dated 10.10.2005 was set aside and the case was remanded. Since the claim of the petitioner again met with the same fate, cause of action arose to file another petition which culminated into the order as above which is now under consideration in this appeal.

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3.5 It is to be noted, as is reflected in the order which was perhaps the order passed by the Additional Secretary to the Government in the first point of time on 04.11.2004 which considered the question of extension of benefit from 09.06.1999, that the case was considered for those employees who were appointed during the period from 01.01.1990 to 01.06.1992, but were ineligible to receive the grant and for few of the non-teaching staff employees who were left out of the order dated 09.06.1999. In

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other words, the petitioner fell in the category of employees left out from being extended the benefit as per the order dated 09.06.1999 to be considered for the salary grant from the said date.

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3.6 The facts stared at the face that as many as 1116 nonteaching staff appointed between 01.01.1990 to 01.06.1992 were accorded the benefit of salary grant from 09.06.1999. Admittedly, the date of appointment of the petitioner including the other two petitioners who filed the previous Writ Petition No.3521 of 2006 fell within the said period between 01.01.1990 to 01.06.1992.

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3.7 No reason forthcame as to why the petitioner was left out from extending the benefit. The conspicuous aspect is that the other two petitioners along with whom the petitioner had filed the said earlier petition came to be granted the benefit to the exclusion of the petitioner, for which also no tenable ground is forthcoming.

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Learned Single Judge, while allowing the instant writ petition, recorded the following findings in paragraph 5 of the order,

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“on careful examination of the G.O. dated 09.06.1999, the Government has taken a decision to dispense with the economic measures and as such, approved nearly 1116 employees in the State and same is subject to the terms and conditions referred to in G.O. dated 09.06.1999. The only compliance to be made by the applicants is, seeking benefit of the G.O. dated

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09.06.1999, that their names should be in staffing pattern prior to 01.03.1992. It is the case of the petitioner that the petitioner was working as FDA, Accountant at Millath Educational and Welfare Society, Davanagere, to S.K.A.H. Composite Pre-University College, since 27.05.1989 and therefore, the Appellate Authority has rightly passed order, stating that the petitioner is entitled for benefit from 09.06.1999 and not from 22.11.2004. This aspect of the matter was also considered by this Court in W.P.No.3521/2006 disposed of on 09.07.2008, wherein the petitioner has been arrayed as petitioner No.3 in the said writ petition.”

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4.1 Learned Single Judge noticed to observe that the State

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Government has extended the benefit from 09.06.1999 to other two petitioners in the said Writ Petition No.3521 of 2006 and that the case of the petitioner was not considered. Learned Single Judge, therefore, viewed that the reasons assigned by the Rivisional Authority in negativing the claim of the petitioner were not sustainable whereas, the Appellate Authority was justified in coming to the conclusion that the petitioner had worked in the college prior to 09.06.1999 and there was no good reason to deny the salary grant benefit to the petitioner from the said date. Learned Single Judge, therefore, directed that the case of the petitioner has to be considered in light of the Government Order dated 09.06.1999.

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This Court is in agreement with the reasonings supplied by learned Single Judge to affirm and uphold the order dated 22.04.2015 passed by the competent authority in the appeal.

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5.1 Learned Additional Advocate General for the appellants sought to rely on Rule 3(1)(b) of the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999 and the proviso thereto, to submit that the petitioner cannot be extended the benefit as above.

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5.2 Learned advocate for the respondent-original petitioner would submit that the said Rule would not apply inasmuch as the claim of the petitioner is only from 09.06.1999 and not from the date of the original appointment. The Court finds substance in what is submitted by learned advocate for the respondent.

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5.3 In course of hearing today, on behalf of the appellants, a memo was filed along with which, the order of the Additional Commissioner, School Education Department, Kalburagi dated 17.08.2024 was produced on the basis of which, learned Additional Advocate General submitted that in respect of two other employees

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who are the co-petitioners along with the petitioner in the previous Writ Petition No.3521 of 2006, the benefit has been withdrawn.

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5.4 When the Court put a query as to under which provision and under which circumstance, the aforesaid order came to be passed, learned Additional Advocate General was entirely at his receiving end. Not only that, it was admitted that the order of withdrawal was passed by the very authority which had passed the earlier order.

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5.5 In this regard, it was submitted on behalf of the respondentpetitioner that the authority had become functus officio and the order of withdrawal could not have been passed by it. This submission could not be brushed aside lightly. Be that as it may. Even otherwise, when the Court looks at the order, it provides that recovery shall not be effected from the said petitioners.

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The Court does not find any good reason to advert to, for any purpose whatsoever, the said order dated 17.08.2024 produced today inasmuch as, in the facts of the case, this Court is entirely in agreement with the reasonings supplied by learned Single Judge in allowing the petition of the petitioner to the extend the benefit of salary grant from 09.06.1999 to 22.11.2004.

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The judgment and order of learned Single Judge does not book any error and does not call for any interference in the appellate jurisdiction. The appeal is dismissed.

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At this stage, learned Additional Advocate General fairly stated that time may be granted to comply with the order passed by learned Single Judge.

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Six weeks’ time is granted to comply with the order within which the benefit shall be accorded to the petitioners.

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In view of the order passed in the writ appeal and extension of time given to comply with the order of learned Single Judge as per the request of learned Additional Advocate General, the contempt proceedings will not survive. They are accordingly disposed of.

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In view of dismissal of the appeal, the interlocutory application would not survive and it stands accordingly disposed of.

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Sd/(N. V. ANJARIA) CHIEF JUSTICE

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Sd/(K V ARAVIND) JUDGE

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DDU, list No.: 1 Sl No.: 10

The Principal Secretary v. Sri. Syed Mansoor Khader

Case brief

What is this about?

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The Principal Secretary v. Sri. Syed Mansoor Khader

Case brief

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