Rajashekhar Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI TO QUASH THE ORDER BEARING NO.KA.SHI.E/17/L.C/WP/2014-2015/DHAVI/NEVI-2 DATED 16.05.204 PASSED BY RESPONDENT NO.4 DIRECTOR OF COLLEGIATE EDUCATION VIDE ANNEXURE – S TO THIS WRIT PETITION. TO ISSUED A WRIT OF MANDAMUS DIRECTING THE RESPONDENT S TO EXTEND THE BENEFIT OF SALARY GRANT/FIXATION OF SALARY TO THE PETITIONERS WITH EFFECT FROM THEIR INITIAL APPOINTMENTS TO THEIR RESPECTIVE POSTS I.E., 08.06.1992 AND 17.08.1992 RESPECTIVELY IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)

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The petitioners are two in number, non-teaching

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staff of the fifth respondent College run by the sixth respondent, they are at the doors of this Court calling in question an order dated 16.05.2014 passed by the fourth respondent declining to accept the representation of the petitioner for grant / fixation of salary with effect from 01.11.1995 as is done in the case of every other teaching or non-teaching staff of this institute or similarly placed different institute.

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Heard the learned counsel Shri Dayanand M.Bandi appearing for the petitioners and the learned HCGP appearing the respondent Nos.1 to 4.

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Facts in brief germane are as follows:

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The first petitioner is appointed as First Division Assistant in the fifth respondent – Institution on 08.06.1992, likewise the second petitioner is appointed as Assistant Librarian on 17.08.1992. After the appointments

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of these petitioners as non-teaching staff, as First Division Assistant and Assistant Librarian, papers were put up before the State for approval of their appointments. The State approves their appointment on 27.01.1993. In the meanwhile, the applications / representations were pending before the State to bring the fifth respondent – Institution within the ambit of salary grants from the hands of the State. This comes to be allowed by the State on 28.07.1995 with effect from 01.11.1995 and all teaching and nonteaching staff of this institution and the similarly situated institutions who had submitted their applications to bring those persons within the ambit of grant was allowed and those teaching and non-teaching staffs were given grant-inaid salary with effect from 01.11.1995.

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The petitioners were not granted the same benefit on the ground that their appointment initially in the year 1992, was in violation of the policy of reservation prevalent at the relevant point in time, years pass by, the State realizes that the petitioners’ appointment was not

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erroneous and was correct and then corrected the anomaly on 02.04.2004 and granted these petitioners the benefit of grant-in-aid salary with effect from 02.04.2004. The petitioners are before this Court on a twin prayers - (i) that they should be entitled to be bought under the ambit of grant right from the date of initial appointment in the year 1992 and the other i.e., (ii) that they are entitled to grantin-aid salary given to others with effect from 01.11.1995 and not from 02.04.2004.

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Learned counsel appearing for the petitioners would vehemently contend that for the folly of the State in misunderstanding the law, the petitioners cannot be penalized, it took nine years for the State to realize that the petitioners were appointed correctly and not erroneously. Therefore, the learned counsel would submit that the petitioners are entitled to the relief that they have sought for in the petition insofar as it pertains to the retrospective date of 01.11.1995.

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Per contra , learned HCGP would refute the

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submission in contending that the petitioners have accepted the order dated 02.04.2004 without any demur. Therefore, they are not entitled to retrospective determination of the date on which they would bought under the ambit of grant from the hands of the State. She would seek for dismissal of the petition insofar as the said prayer is concerned. Insofar as the other prayer of consideration of service of the petitioners from the date of their initial appointment, the learned HCGP would submit that the matter is pending before the Division Bench.

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I have given my anxious consideration to the arguments addressed on both sides and perused the material on record.

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The afore-narrated facts are not in dispute, link in the chain of events are as narrated. Both these petitioners get appointed as non-teaching staff, as First Division Assistant and Assistant Librarian on 08.06.1992 and 17.08.1992 respectively. The College in which the

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petitioners were working comes under the ambit of grant from the hands of the State on 28.07.1995 with effect from 01.11.1995.

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The petitioners were left out. The leaving out of

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the petitioners is on the score that the petitioners’ initial appointment on 08.06.1992 and 17.08.1992 were contrary to the policy of reservation. The state then realizes i.e., nine years later that the petitioners were correctly appointed and not in violation of the reservation policy as both the posts i.e., First Division Assistant and Assistant Librarian were single cadre post, it is trite that there can be no reservation of a single cadre post.

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The State appears to have been in deep slumber for nine years, in realizing the settled principle of law that there cannot be a reservation of a single cadre post. After nine years wisdom dawns on the state and on 02.04.2004 realizing their folly bring these petitioners under the ambit of grant. The petitioners cannot made to suffer for no mistake of theirs, as they were rightly appointed and they

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were entitled to be bought under the grant from the hands of the State with effect from 01.11.1995, the date on which the others were granted the benefit.

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It would have been altogether a different circumstance if the petitioners were at fault, they are not in the light of the observations made hereinabove the petitioners cannot be held to be at fault, but the entire folly is at the hands of the State. Therefore, the petitioners who at all times entitled to the benefit granted to the others cannot be denied by the State by a stroke of a pen after nine years, on the ground that the wisdom has downed on them, after nine years. Therefore, the petition deserves to be succeed with the determination of the date of the entitlement of grant to these petitioners at 01.11.1995 and not 02.04.2004.

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Insofar as the other prayer is concerned, learned counsel would submit that he would work out his remedy after the decision rendered by the Division Bench in Writ Appeal No.2476/2015.

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For the aforesaid reasons, the following:

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ORDER

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(i) The writ petition is allowed in part.

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(ii) The order which directs the petitioners becoming entitled to grant from 02.04.2004 stands quashed.

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(iii) It is declared that the petitioners are entitled to the benefit of salary grant or grant-in-aid salary with effect from 01.11.1995.

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(iv) The petitioners shall also be entitled to all consequential benefits that would flow from the aforesaid change of date from 02.04.2004 to 01.11.1995.

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(v) The State shall comply with the order, by determining the arrears of salary and pay to the petitioners within an outer limit of twelve weeks from the date of receipt of certified copy of this order.

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(vi) In the event, the arrears would not be paid within an outer limit of twelve weeks, the

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petitioners would become entitled to interest at the rate of 6% p.a. from the date of receipt of certified copy of this order till payment reaches the doors of the petitioners.

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(vii) In the event, the State would not comply the aforesaid direction as well, the petitioners would become entitled to interest at the rate of 12% p.a. from the date of the order passed today, till its payment.

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Ordered accordingly.

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Sd/(M.NAGAPRASANNA)

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JUDGE

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VNP/CT-ASC List No.: 1 Sl No.: 135

Rajashekhar v. the State of Karnataka

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Rajashekhar v. the State of Karnataka

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