Allowed

Dr H K S Swamy v. State of Karnataka

Karnataka HC24 Sept 2024WP/19165/2013

Case brief

AI extract

What is this about?

A pharmacy college professor promoted to principal was displaced by the appointment of a junior colleague as principal without annulling his appointment in accordance with law. The High Court set aside the Government order rejecting his revision and directed reinstatement as principal with consequential benefits and 50% back wages.

What did the court decide?

Impugned order dated 18.04.2013 set aside; appointment of respondent No.5 as principal quashed; petitioner reinstated as principal with consequential benefits and 50% salary arrears within one month.

Dr H K S Swamy Vs State of Karnataka — Education and Admissions | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 19165 OF 2013 (S-RES)

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BETWEEN:

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DR. H.K.S. SWAMY S/O H.M. KUMARASWAMY AGED ABOUT 48 YEARS OCCUPATION: PROFESSOR AND PRINCIPAL, SJM COLLEGE OF PHARMACY, CHITRADURGA - 577 502.

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…PETITIONER

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(BY SRI PRAVEEN KUMAR RAIKOTE, ADVOCATE)

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AND:

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STATE OF KARNATAKA

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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BY ITS SECRETARY TO GOVT. DEPT. OF HEALTH AND FAMILY WELFARE (MEDICAL EDUCATION) DEPT. BANGALORE - 560 001.

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THE PRESIDENT SJM COLLEGE OF PHARMACY, CHITRADURGA - 577 502.

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THE DIRECTOR, AICTE SOUTH WESTERN REGIONAL OFFICE, P.K.BLOCK, PALACE ROAD, BANGALORE - 560 009.

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RAJEEV GANDHI UNIVERSITY OF HEALTH SCIENCES, JAYANAGAR 4^TH 'T' BLOCK, BANGALORE - 560 041 BY ITS REGISTRAR.

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DR. T.S. NAGRAJ PROFESSOR SJM COLLEGE OF PHARMACY, CHITRADURGA - 577 502.

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(AMENDED AS PER COURT ORDER 07.08.2023)

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THE PHARMACY COUNCIL OF INDIA BY ITS REGISTRAR COMBINED COUNCILS BUILDING, TEMPLE LANE, KOTLA ROAD, AIWAN-E-GHALIB MARG, POST BOX NO.7020, NEW DELHI - 110002.

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…RESPONDENTS

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(BY SRI GOPALAKRISHNA SOODI, AGA FOR R1; SRI M.P. SRIKANTH, ADVOCATE FOR R2 AND R5; SRI N.K. RAMESH, ADVOCATE FOR R4;

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NOTICE SERVED ON R3 AND UNREPRESENTED;

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VIDE ORDER DATED 24.09.2018 NOTICE TO R6 IS HELD SUFFICIENT)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER AT ANNEXUER-F DATED 18.04.2013 VIDE NO. HFW 212 PTD 2012 PASSED BY RESPONDENT NO.1 AND ALLOW THE SAID REVISION PETITION FILED BY THE PETITIONER AND ETC.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has sought for a writ in the nature of certiorari to quash the order No. HFW 212 PTD 2012 dated 18.04.2013 passed by respondent No.1. He has also sought for a writ or order or direction to quash the order bearing No.SJMV 127 2008-09 dated 16.01.2009 passed by respondent No.2, appointing respondent No.5 as the principal. He has also sought for a writ in the nature of mandamus to direct the respondent No.2 to reinstate his service as principal of the college with continuity of service and all monitory benefits.

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(i) The petitioner contends that he was appointed

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as an assistant professor on 17.03.1997 at the department of pharmaceutical chemistry in the respondent No.2 – college. He contends that respondent No.2 is recognized by respondent No.3 and is affiliated to respondent No.4. He completed his Ph.D in pharmacy during July 1999 and was promoted as principal of the institution with effect from 01.08.2007. The list of staff members sent by the respondent No.2 to respondent No.3 and 4 shows that, the petitioner was officiating as principal of respondent No.2. He contends that respondent

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Nos.3 and 4 had also recognized the petitioner as principal of respondent No.2 and that he was qualified to hold the post.

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(ii) He contends that respondent No.5 was appointed as lecturer in the respondent No.2 with effect from 15.01.1997. She completed her Ph.D in chemistry in February 2009. She too made a claim for an appointment to the post of professor and principal of the college. Even though the petitioner was already appointed as professor and principal of the college, yet, the respondent No.2 without annulling the appointment in the manner known to law, passed an order dated 16.01.2009, appointing the respondent No.5 as principal of the college.

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(iii) He contends that he was disturbed and upset by the appointment of respondent No.5 and therefore submitted representations to all the respondents. The respondent No.2 was enraged over the petitioner submitting representations to respondent Nos.3 and 4 and therefore, suspended the petitioner from service on 18.04.2009. The petitioner challenged the order of suspension before respondent No.1. After the respondent No.2 was served with the notice of the appeal, it was convinced that the order of suspension was not justified and hence it revoked the order of suspension on

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15.07.2009 and petitioner was directed to report to duty within three days. He was also directed to appear before the enquiry committee as and when summoned. When the petitioner reported to duty, he was reinstated as professor and not as a principal of the college.

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(iv) The petitioner then filed a revision petition under Section 131 of Karnataka Education Act, before respondent No.1 challenging the appointment of respondent No.5 as principal of the college. The said revision petition was allowed by respondent No.1 which was challenged by respondent No.2 in W.P No.40965-966/2010.

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(v) This Court in terms of the order dated 10.03.2011, allowed the writ petition and remitted the case back to respondent No.1 to reconsider the issue.

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(vi) After remand, the respondent No.1, dismissed the revision petition which was challenged by the petitioner before this Court in W.P No.30887/2011. This Court in terms of the order dated 11.06.2012, allowed the writ petition and quashed the order passed by respondent No.1 and directed the respondent No.1 to examine whether the respondent No.5 was junior than petitioner.

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(vii) The respondent No.1 thereafter heard the revision petition. A statement containing the service particulars of the petitioner and respondent No.5 was furnished to respondent No.1 to decide the review petition. The respondent No.1, proceeded on the basis that a revision before him under Section 131 of Act, 1983 was not maintainable in view of an appeal remedy available to the petitioner under Section 94 (5) of the Karnataka Education Act, 1983.

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(viii) Despite holding that a revision was not maintainable before him, yet, respondent No.1 recorded a finding that though petitioner was senior than the respondent No.5 and though the petitioner was appointed as principal of the college prior to appointment of respondent No.5, he did not discharge his duty as principal but allowed the earlier incumbent Sri Jagadish to work as principal. The respondent No.1 held that after the suspension of the petitioner was revoked, he reported to duty as a professor and not as a principal and hence, he was ineligible to claim the post of principal. Being agrreived by the said order of respondent No.1, this writ petition is filed.

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3. Learned counsel for the petitioner contends that,

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(i) It is not in dispute that the petitioner was appointed

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as professor and principal of respondent No.2, in terms of an appointment order dated 31.07.2007 with effect from 01.08.2007. He contends that in all correspondence with respondent Nos.3 and 4, the petitioner had signed as principal of respondent No.2. He contended that in order to throw out the petitioner from service, an order of suspension was passed suspending his services which was later revoked pending an enquiry. He contends that no enquiry of whatsoever nature is conducted till date.

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(ii) He contends that even after the suspension order was revoked, he was not allowed to work as principal but was forced to work as professor and therefore, the petitioner was constrained to file a revision petition under Section 131 of Karnataka Education Act, 1983 and called up the respondent No.2 to restore his position as principal of respondent No.2. He contends that the respondent No.1 proceeded on the assumption that, an appeal under Section 94 of Karnataka Education Act, 1983, was maintainable, unmindful of the fact that this Court in W.P No.30887/2011, had directed him to

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consider the question whether the respondent No.5 was senior than the petitioner.

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(iii) He also contends that the respondent No.1 committed an error in holding that the petitioner did not report to work from the date of his appointment as principal but allowed the earlier incumbent Sri Jagadish to function as the principal.

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(iv) He contended that the respondent No.5 is junior than the petitioner and therefore, she was not entitled to be appointed as principal but it was handwork of respondent No.2 to post the respondent No.5 in the place of the petitioner. He thus, contends that, the petitioner is entitled for restoration of his post as principal of respondent No.2 by setting aside the appointment of respondent No.5 and granting all benefits that are applicable to the post of principal of respondent No.2.

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The writ petition is opposed by respondent No.2 who has filed an elaborate statement of objections. It is contended therein that,

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(i) The petitioner was appointed as assistant professor on 17.03.1997 and was promoted as professor and principal with effect from 01.08.2007, as per the memo dated

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31.07.2007. It is alleged that the petitioner did not report to duty as principal and did not take over charge of the post of principal from Sri N. Jagadish, who was holding it before him.

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(ii) The respondent No.5 was appointed as lecturer on 15.01.1997 and promoted as professor on 03.11.2008 and principal on 16.01.2009 and as head of the department on 24.02.2009. It is contended that Sri N. Jagadish was the principal of college, but he did not possess a Ph.D and therefore, respondent No.3 raised objections regarding the continuation of Sri N. Jagadish as the principal of the college. It was in that context that the petitioner was promoted as principal of college with effect from 01.08.2007.

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(iii) It is alleged the petitioner did not report to duty and did not take over charge from Sri N. Jagadish but, allowed Sri N. Jagadish to continue as principal of college. It is thus, alleged that, the petitioner had colluded with Sri N. Jagadish and Sri N. Jagadish resorted to such acts in order to show that there was only one qualified person who was incharge of the institution as principal. It is alleged that this arrangement between the petitioner and Sri N. Jagadish continued from

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01.08.2007 to 16.01.2009, when the respondent No.5 took charge as the principal of respondent No.2.

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(iv) In order to substantiate that Sri N. Jagadish was discharging his duties as the principal of the institution, the respondent Nos.2 and 5 have referred to various correspondence between Sri N. Jagadish and the president of the institution which was established by respondent No.2. They also referred to the staff attendance registers for the period January 2008 to January 2009, which showed Sri N. Jagadish was signing the attendance register as principal of the institution for the period January 2008 to April 2009 while the petitioner was signing as professor. It was contended that the petitioner had signed the attendance register as professor, till the date he was suspended from service. He continued to sign the attendance register as professor and not as principal. It was further contended that from January 2009 to March 2009, Sri N. Jagadish had drawn the salary in the capacity of a principal of respondent No.2, while the petitioner had drawn salary as a professor.

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(v) It is contended that respondent No.5 issued a circular dated 16.04.2009, informing all staff members to be

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present at the time of inspection by respondent No.4. Along with the said circulars, two lists were enclosed which shows the names of the teaching staff and the name of the petitioner was shown as a professor. However, it is alleged that the petitioner had tampered the list by describing himself as principal of college. It is contended that the petitioner never raised any objection in this regard, but addressed a letter dated 30.03.2009 to respondent No.4 seeking a clarification as to who was shown as the principal of respondent No.2.

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(vi) It is contended that since the petitioner did not take

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charge of the post of principal and since he tampered the documents and indulged in anti institution acts, he was kept under suspension as per the memo dated 18.04.2009 pending an enquiry, however, after it was revoked, he was later posted as professor as per the memo dated 15.07.2009 pending enquiry. It is alleged that the petitioner did not report to duty from the date of revocation of the suspension.

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(vii) However, the petitioner in terms of his letter dated 20.07.2009, addressed to respondent No.2, clearly stated that he was ready to sign as principal of college and not as

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professor, though, he neither took charge of post of principal from Sri N. Jagadish nor did he work as principal.

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(viii) It is contended that therefore the respondent No.2

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did not entertain the claim of the petitioner. However, the petitioner had filed revision petition before respondent No.1 under Section 131 of the Karnataka Education Act, 1983.

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(ix) Respondent No.1, in terms of the order dated 25.10.2010, directed to reinstate the services of the petitioner as principal along with all consequential benefits which was challenged before this Court in W.P No.40965-966/2010. This Court allowed the writ petition and remitted the case back to respondent No.1 for reconsideration. While doing so, this Court specifically directed the respondent No.1 to consider whether the order impugned was appealable and the appeal filed by the petitioner before respondent No.1 was maintainable. He contended that after remand, the case was taken up by respondent No.1 on merits and an order dated 12.07.2011 was passed, which was then challenged by the petitioner in W.P No.30887/2011.

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(x) The respondent Nos.2 and 5 contended that this Court allowed the W.P No.30887/2011 and directed the

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respondent No.1 to reconsider the same. Following this, respondent No.1 passed the impugned order holding that the revision filed by the petitioner was not maintainable. Contemporaneously, he held that the petitioner had failed to report to duty as principal, despite being appointed as so,. Consequently, the appeal filed by the petitioner was dismissed.

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Learned counsel for respondent Nos.2 and 5 elaborating on the statement of objections submitted that, the petitioner from the date of his appointment as principal, continued to sign the attendance register as professor and had allowed Sri N. Jagadish to sign the attendance register as principal. Likewise, he contends that after the appointment of respondent No.5 as the principal, the petitioner continued to sign the attendance register as professor and he therefore contends that, the petitioner was conscious of the fact that the respondent No.2 had treated the petitioner as professor and not as principal. He contended that the petitioner did not report to work even after the order of suspension was revoked on 15.07.2009. Therefore, respondent No.2 could not function without a principal and hence appointed the respondent No.5 as the principal of the college. Further he contended that the

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petition filed by the petitioner before respondent No.1 was not maintainable. He contended that, if the petitioner's claim that his rank was reduced from the post of principal to post of professor, then he was bound to file an appeal before Education Appellate Tribunal under Section 94 and certainly not by a revision under Section 131 of Karnataka Education Act before respondent No.1. He therefore contends that respondent No.1 was justified in holding that the petition filed by the petitioner was not maintainable. Besides that, he contends that the respondent No.1 after being satisfied that the petitioner did not report to duty from the date of revocation of suspension rightly held he was not entitled to be reinstated as the principal of respondent No.2. He thus contends that the impugned order passed by respondent No.1 was just and proper and does not warrant intereference.

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In support of his contentions, he relied upon the Judgment of Division Bench of this Court in the case of Management of M S Ramaiah Medical College and Hospital Vs. Dr. M. Somashekar [ILR 2004 KAR 37]

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I have considered the submission of learned counsel

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for the petitioner and learned counsel for the respondents No.2 and respondent No.5.

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The fact that the petitioner was appointed by respondent No.2 on 31.07.2007 with effect from 01.08.2007 as principal of Pharmacy college is not in dispute. It is also not in dispute that the respondent No.5 was appointed on 16.01.2009 as principal of respondent No.2. The respondent No.2 suspended the service of the petitioner on 18.04.2009 and thereafter revoked the order of the suspension on 15.07.2009. In the order revoking suspension of the petitioner, he was directed to report to duty within three days from the date of receipt of the order and required him to appear before the enquiry committee as and when summoned. Ideally, after reinstatement, the petitioner must have been allowed to work as a principal. Contrarily, he was permitted to work as professor under the respondent No.5. The Petitioner submitted a representation that the respondent No.2 illegally forced him to report to the post of professor as against the post of principal. The petitioner was therefore perforced not to report to duty as professor of respondent No.2. However, he

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challenged the action of respondent No.2 in compelling the petitioner to report to duty as professor, by filing a revision petition under Section 131 of the Act, 1983, before respondent No.1. The said revision petition was initially allowed on 25.10.2010 and respondent No.2 was directed to reinstate the petitioner as principal along with all consequential benefits. This order was challenged by respondent No.2 in writ petition before this Court in W.P No.40965-966/2010. This Court in terms of the order dated 10.03.2011, allowed the writ petition filed by respondent No.2 and while doing so, specifically observed

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“it is seen from the order dated 25.10.2010 that there are no reasons assigned nor the objections regarding the maintainability of the appeal by the appellate authority is considered. Apart from narrating the rival contentions briefly, there is no application of judicial mind in determining the rights of the parties and on the question of jurisdiction which has been raised by the petitioners. Accordingly, it is appropriate that the authority to reconsider the appeal and address the merits of the case after affording opportunity of hearing to the parties and to pass an order in accordance with law”.

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After the order of remand, the respondent No.1 passed an order dated 12.07.2011, holding that the respondent No.5 was appointed as de-facto principal with effect from 16.01.2009 and not de-jure . He further held that respondent No.5 is a Ph.D holder and a professor and hence qualified to hold the post of principal, even though the petitioner was senior than her. He further held that it is for the respondent No.2 to take a considered decision whether the petitioner or respondent No.5 was the right person to helm the post of principal. Respondent No.1 thus, dismissed the appeal filed by the petitioner in terms of the order dated 12.07.2011. This was challenged before this Court in W.P No.30887/2011. Neither the respondent No.2 nor respondent No.5 raised the question of maintainability of the revision petition before respondent No.1 but allowed the matter to be remitted back to respondent No.1. Respondent No.1 after such remand, relied upon the observation made by this Court in W.P No.40965966/2010, that the revision petition filed by the petitioner before him was not maintainable. Having held that the revision petition was not maintainable, he decided it on merits by holding that the petitioner did not report to duty as principal,

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but allowed Sri N. Jagadish to continue as principal and hence appointment of respondent No.5 is justified.

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Once the petitioner was appointed as principal, the respondent No.2 could not have allowed Sri N. Jagadish to sign the attendance register as principal of respondent No.2. The respondent No.2 has not disputed the fact that in all the statutory compliances under the AICTE Act and Universities Act, the name of the petitioner was shown as the principal of respondent No.2. Once the petitioner was appointed as principal, he was entitled to continue as such until he was removed in accordance with law. The way in which, the respondent No.2 has dealt with the petitioner is highly illegal and deserves to be deprecated in the strongest words possible. The petitioner being an individual could not have forcibly taken over charge from Sri N. Jagadish. It was the duty of the respondent No.2 to take steps to install the petitioner but on the contrary, it allowed Sri N. Jagadish to continue as principal. It seems as if the petitioner was appointed so that he could muscle down Sri N. Jagadish and take over the post and thereby give a reprive to the respondent No.2. It is strange that the respondent No.2, alleged that the petitioner had

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conspired with Sri N. Jagadish and had suspended him from service and after revoking it, required the petitioner to report to duty as professor and not as principal of respondent No.2. By that time, the respondent No.2 had wrongly appointed the respondent No.5 as the principal of college. The petitioner therefore, was justified in not reporting to work as the professor of the respondent No.2. Since, respondent No.2 had indulged in an unethical practice by allowing a junior to be appointed as principal, the petitioner was justified in filing a revision petition before respondent No.1 to undo the illegal acts committed by respondent No.2. The petitioner did not claim that he was reverted to the post of professor from the post of principal. On other hand, he contended that, while he was appointed as principal, respondent No.5 also could not have been appointed as principal of college. Therefore, the contentions of the learned counsel for respondent Nos.2 and 5, that the petitioner was bound to file an appeal before the Karnataka Appellate Tribunal under Section 94 of the Karnataka Education Act is not justified. The respondent No.1 even after finding that the petitioner was senior than the respondent No.5 and even after finding that the petitioner was appointed as

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principal, much prior to the appointment of respondent No.5, must have reinstated service of the petitioner more particularly when no disciplinary action was initiated against the petitioner. Therefore, conduct of respondent No.2 in dealing with the petitioner deserves to be deprecated in the strongest terms possible. Having regard to the fact that, the petitioner was qualified to hold the post of principal and respondent No.2 has detestably dealt with the petitioner by appointing respondent No.5 as principal, the status-quo-ante needs to be restored. This would only redeem the pride and reputation of the petitioner that he lost while the serving respondent No.2

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In that view of the matter, this writ petition is allowed . The impugned order passed by respondent No.1 dated 18.04.2013 is set-aside. Consequently, the order of appointing the respondent No.5 as principal of respondent No.2 is also set aside. Respondent No.2 is directed to reinstate the service of the petitioner as the principal of respondent No.2 with all consequential benefits within a period of one month from the date of receipt of a copy of this order, failing which he is entitled to take charge after informing jurisdictional police.

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It is made clear that no domestic enquiry shall be held against the petitioner now to deny him the above benefit. In so far as salary payable to petitioner is concerned, he is entitled to 50% of the salary as revised from time to time and other benefits as provided in law. The salary arrears shall be paid to the petitioner from the date of his reinstatement till the date of this order within a period of one month from the date of receipt of a copy of this order

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Sd/(R. NATARAJ) JUDGE

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THM

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List No.: 1 Sl No.: 7

Dr H K S Swamy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Dr H K S Swamy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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