Sri. Shviayogi S. Kammar S/O Sathyappa Vs State of Karnataka

SRI. SHVIAYOGI S. KAMMAR S/O. SATHYAPPA, AGE: 47 YEARS, WORKING AS ASSISTANT, VIVESWARAIAH TECHNOLOGICAL UNIVERSITY, (UNDER ORDERS OF REMOVAL FROM SERVICE), R/AT: PLOT NO.2, CTS NO.141/2, SAI SHARADA COLONY, 2^ND CROSS, NEAR MUKTANGANA SCHOOL, VADAGAON, ANGOLD ROAD, BELAGAVI -590026.

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…PETITIONER

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(BY SRI RAVI HEGDE, ADVOCATE)

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench, Dharwad

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AND:

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STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BENGLAURU -560001.

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THE VICE CHANCELLOR, VISVESWARAIAH TECHNOLOGICAL UNIVERSITY, GNANA SANGAMA, BELAGAVI -590018.

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THE REGISTRAR, VISVESWARAIAH TECHNOLOGICAL UNIVERSITY, GNANA SANGAMA, BELAGAVI -590018.

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…RESPONDENTS

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(BY SRI ANOOP G. DESHPANDE, ADVOCATE FOR R2 & R3, SMT KIRTHILATA R. PATIL, HCGP FOR R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IS PRAYING TO CALL FOR RECORDS RELATNG TO ISSUE OF THE IMPUGNED ORDER BEARING NO. V.Ta.V.VGM/DPAR/CR(1)/2017-18/1094 DATED:15.09.2017 ISSUED BY THE 2^ND RESPONDENT VIDE ANNEXURE-N AND AFTER PERSUAL THE SAME. ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER BEARING NO.V.Ta.VGM/DPAR39/CR(1)/2017-18/1094, DATED 15/9/2017 PASSED BY THE RSPONDENT NO.3 VIDE ANNEXURE-N. TO DIRECT THE RESPONDENTS TO CONSIDER THE CLAIM OF THE PETITIONER FOR ABSORPTION IN THE CADRE OF ASSISTANT FROM THE DATE THE SIMILARY PLACED PERSONS WERE ABSORBED IN THE CADRE OF ASSISTANT, PURSUANT TO THE DIRECTIONS ISSUED BY THIS HON'BLE COURT ON 10.09.2014 IN WRIT PETITION NO.71241-330/2012 AND GRANT ALL CONSEQUENTIAL BENEFITS THAT HE IS ENTITLED ON SUCH ABSORPTION RETROSPECTIVELY. TO PASS SUCH OTHER RELEIFS AS THIS HON’BLE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, 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 petitioner is at the doors of this Court, yet

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again seeking a direction to consider his claim for absorption in the cadre of Assistant in the light of similarly

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placed employees getting absorbed in the cadre of Assistant pursuant to a direction at the hands of this Court on 10.09.2014 in Writ Petition No.71241-71330/2012.

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Heard the learned counsel Sri.Ravi Hegde appearing for petitioner and learned-HCGP Smt.Kirtilata R. Patil appearing for respondent No.1 and learned counsel Sri.Anoop G.Deshpande appearing for respondents No.2 and 3.

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Facts in brief germane are as follows:

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The petitioner is appointed as a Junior Assistant-

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cum-Computer Operator on a consolidated pay in the respondent-Vishveshwaraiah Technological University, Belagavi (for short “the University”). It transpires five years thereafter the petitioner was appointed as an

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Assistant in the examination section, again on consolidated pay. Thus the service of the petitioner continued from time to time with intermittent renewals of after completion of six months of service up to 12.12.2011. On 12.12.2011 the petitioner along with others had approached this Court in Writ Petition No.68104-68268/2011. A direction was issued by this Court to consider the claim of the petitioners along with others in the cadre of Assistants for regularization.

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It transpires that on 22.08.2012 a crime comes to be registered against the petitioner in Crime No.196/2012 on the score that the petitioner had a role to play in the tempering of the answer scripts in the examination section. The petitioner was directed not to attend duties on the ground that he has got himself involved in the aforesaid crime and had been taken into custody.

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The co-ordinate bench of this Court in Writ Petition No.71241/2012 in terms of its order dated

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10.09.2014 directed consideration of the case of similarly situated persons for absorption on the guidelines of the Government and the resolution passed by the executive committee of the University.

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After the said order the police, who were conducting investigation in Crime No.196/2012 file a ‘B’ report in favour of the petitioner. In terms of the direction in Writ Petition No.71241/2012 dated 10.09.2014 of the co-ordinate bench orders of absorption as a one time measure comes to be passed by the University. The case

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of the petitioner was not considered on the score that he was not in service at that relevant point in time. This led the petitioner to this Court again in Writ Petition No.106626/2017 for a direction to consider the case of the petitioner. This comes to be disposed for directing consideration of the case.

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The consideration results in impugned order observing that the petitioner was appointed on temporary basis and at the relevant point in time he was not in

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service and therefore the question of absorption would not arise, therefore the petitioner is again before this Court.

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Learned counsel appearing for the petitioner

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submits that the only reason that he was not considered for absorption at the relevant point in time was that he had incurred ineligibility due to the involvement in the aforesaid crime. The crime having ended in ‘B’ report, it was incumbent upon the respondent University to consider the case of the petitioner as well like every other person for absorption into the services. Non-consideration is arbitrary is submission counsel appearing for petitioner.

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Learned counsel Sri. Anoop G. Deshpande representing the University would refute the submissions to contend that the petitioner was a temporary employee. He gets involved in a crime and he is taken into custody and therefore he had to be asked not to report back to duties. Therefore there was a break in service for over five years and its representation for reinstatement was never considered and therefore the petitioner ceased to be an employee in the year 2012 itself when a crime came to be

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registered against him. It is the submission that all other persons were observed as a one time measure at which point in time the petitioner was not working at all. Therefore there can be no question of absorbing the petitioner now at this point in time on the score that he is similarly placed and he would seek dismissal of petition.

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The afore-narrated facts are not in dispute. It would suffice, if the issue is noticed from an order dated 07.01.2011 it reads as follows:

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“:Officer order:

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Ref: Hon’ble Vice-Chancellor order dated 4.1.2011

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By the directions of the Hon’ble Vice-Chancellor, the service of Sri Shivayogi S. Kammar, Assistant, are continued on the existing terms and conditions for a period of six months from 02.01.2011 to 30.06.2011 on a consolidated pay of Rs. 13,000/- p.m. He should report to the Registrar (Evaluation), VTU, Belagavi.”

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This is indicative of the fact that the petitioner

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has been working in the University by then for about thirteen years. The petitioner along with others approach this Court in Writ Petition No.68104-68268/2011 seeking absorption of their services into the University. The Writ Petition comes to disposed by the following order:

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“In the writ petitions the petitioners have prayed for a direction to the second respondent to consider their representation as per annexure-H and H1 dated 25.02.2009 and 04.03.2009. In these common representation the petitioners requested the second respondent to regularize their services and to extended the consequential benefits.

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2. The Learned Counsel for the petitioners submit that on the basis of these representation, no orders are passed by the second respondent. If that is so second respondent is hereby directed to consider the petitioners representation at annexure H and H1 dated 25.02.2009 and 01.03.2009 in accordance with law and as expeditiously as possible.

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3. It is also open for the petitioners to give a fresh representation with supporting documents and also copies of judgment that have relied on .

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Accordingly the writ petition are having disposed of.

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Three weeks time is granted to file memo appearance.”

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Before the consideration could happen the petitioner incurs ineligibility by getting embroiled in a Crime No.196/2012 for several offences on the score that the petitioner was a participant in tampering of the answer scripts in the examination section. This broke the service of the petitioner.

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In furtherance of the direction issued by this Court supra , the process of absorption of those employees

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who were on roles as on that day would commence in the

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University. All the employees who were similarly placed along who had been working with the petitioner earlier are absorbed and the petitioner is not. The only reason that

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the petitioner does not get absorbed his involvement in the aforesaid crime. After the B report the petitioner submits a representation, which reads as follows:

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“Name of the applicant: Shivayogi S. Kammar

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Residence Address: Plot no.02, CTS No. 141/2, Sai Shraddha Colony, 2^nd Cross Near Mukthangan School, Vadgao Angold Road, BELAGAVI – 590 006.

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DETAILS OF INFORMATION AND DOCUMENTS REQUIRED:

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1) Kindly provide me the salary statement of mine from January 2012 to April 2012

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2) Kindly provide me the number of vacancies of Assistant post in the University approved by the government and executive council.

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3) Kindly provide me the number of assistant post filled in the university according to high court order

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Designation and address of the Public Information Officer from whom the information is required,

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To

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The Registrar, Visvesvaraya Technological University, Santibastiwad Road,

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Machche, BELAGAVI – 590 018.

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Signature of the Applicant

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Place: Belagavi Date: 27.09.2017

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Note: These above mentioned three points of information required by mine and also attached fees for postal order Rs. 30/- according to RTI act to the concerned officer.

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Kindly send all the information required by mine to the above mentioned address.”

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The petitioner then approaches this Court in Writ Petition No.106626/2017 dated 19.07.2017. This Court disposes the petition with the direction to consider his representation has also the fact that the criminal case has ended in ‘B’ report. The petitioner then represents enclosing the order passed by this Court. The result is the impugned order. The impugned order though does not refer to any pendency of criminal case against the petitioner. It is foundation and upon the fact that the petitioner was not in service at the relevant point in time, when cases of others were taken up for absorption.

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The only reason for not taking the case of the petitioner for absorption is the petitioners involvement in the crime. Therefore if other persons similarly situated have been considered for absorption, it is for the University to consider the case of the petitioner bearing in mind all the orders passed by this Court has also the fact that the petitioner has been absolved of the crime by the police filing a B report, and said B report getting accepted at the hands of the concerned Court.

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There can be no rendering of a positive direction to the University to absorb the service of the petitioner in the light of the aforesaid facts and it becomes open to the University to consider the case of the petitioner for absorption in the light of the fact that he has been absolved of all the blame in the crime, as also the fact that his services had to be discontinued only because of the crime that was registered and, which has now ended in his favour.

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For the aforesaid reasons the following:

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ORDER

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(i) The petition is allowed.

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(ii) The respondent-University is at liberty to consider the case of the petitioner for absorption like in the case of the others bearing in mind the observations made in the course of

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the order.

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Ordered accordingly.

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Sd/(M.NAGAPRASANNA) JUDGE

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RHR/-

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List No.: 1 Sl No.: 7

Sri. Shviayogi S. Kammar S/O Sathyappa v. State of Karnataka

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Sri. Shviayogi S. Kammar S/O Sathyappa v. State of Karnataka

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