Sri. Prakash M E Vs the Commissioner

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1 - NC: 2025:KHC:16137 WP No. 21243 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF APRIL, 2025

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 21243 OF 2023 (S-RES)

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BETWEEN:

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SRI. PRAKASH M.E. S/O. ERANNA, AGED ABOUT 34 YEARS, BASAVESHWARA HIGH SCHOOL, MAHALAKSHMIPURAM, BANGALORE-560086, RESIDING AT MV PALYA, MATHIKERE, MADBAL HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT, RAMANAGARA-562120 …PETITIONER

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(BY SRI. GIRI KUMAR S.V., ADVOCATE)

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AND:

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

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THE COMMISSIONER DEPARTMENT OF SCHOOL EDUCATION, NRUPATHUNGA ROAD, BANGALORE-560001

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DIRECTOR (SECONDARY) DEPARTMENT OF SCHOOL EDUCATION, NRUPATHUNGA ROAD, BANGALORE-560001

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DEPUTY DIRECTOR PUBLIC INSTRUCTIONS (ADMINISTRATION), BANGALORE NORTH, K.G. ROAD, BANGALORE-560002

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THE ADMINISTRATIVE OFFICER SRI JAGAJYOTHI BASAVESHWARA SAHAKARA SANGAHA (R),

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(BASAVESHWARA EDUCATION INSTITUTIONS), 2^ND BLOCK, RAJAJINAGARA,

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BANGALORE-560010

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BLOCK EDUCATIONAL OFFICER DEPARTMENT OF SCHOOL EDUCATION, BANGALORE NORTH-1, RAJAJINAGAR, BANGALORE-560010

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PRESIDENT SRI JAGAJYOTHI BASAVESHWARA SAHAKARA SANGAHA (R), (BASAVESHWARA EDUCATION INSTITUTIONS), 2^ND BLOCK, RAJAJINAGARA, BANGALORE-560010

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HEAD MASTER BASAVESHWARA HIGH SCHOOL, MAHALAKSHMI LAYOUT, BANGALORE-86

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THE CHIEF EXECUTIVE OFFICER SRI JAGAJYOTHI BASAVESHWARA SAHAKARA SANGAHA (R), (BASAVESHWARA EDUCATION INSTITUTIONS), 2^ND BLOCK, RAJAJINAGARA, BANGALORE-560010

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SRI. BYRESH K.S. S/O SIDANNA, AGED MAJOR, RESIDING AT K. KALLAHALLI GRAMA, KADABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT, TUMAKURU-572101

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…RESPONDENTS (BY SRI. SHIVAPRABHU S. HIREMATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOS.1 TO 3 AND 5;

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SRI. C.S.MADHU, ADVOCATE FOR RESPONDENT NO.6 (THROUGH VC); SRI. S. THYAGARAJA, ADVOCATE FOR RESPONDENT NO.9; NOTICE SERVED ON RESPONDENT NOS.4, 7 AND 8)

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3 - NC: 2025:KHC:16137 WP No. 21243 of 2023

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN RESPECT OF REVISION PETITION BEARING NO.REV.29/2023 UNDER SECTION 131 AND 133 OF KARNATAKA EDUCATION ACT, 1983 FROM THE 1^ST RESPONDENT AS PER ANNEXURE-Q AND QUASH THE ORDER DATED 29.08.2023 IN REVISION PETITION 29/2023 PASSED BY THE 1^ST RESPONDENT VIDE ANNEXURE-Q, CONSEQUENTLY THE ORDER DATED 06.02.2023 PASSED BY THE GOVERNMENT IN REV.04/2022 UNDER SECTION 131 AND 133 OF KARNATAKA EDUCATION ACT, 1983 VIDE ANNEXURE-M.

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THIS PETITION, COMING ON FOR ORDERS, 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 challenged an order dated 29.08.2023 passed by the respondent No.1 in Revision Petition No.29/2023 and consequently to set aside the order dated 06.02.2023 passed by the State Government in Rev.No.4/2022 under Section 131 and 133 of the Karnataka Education Act, 1983 (for short 'Act, 1983').

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(i) The petitioner claims that the respondent No.4 had invited applications from eligible candidates for the posts of Science Teacher (CBZ) and Hindi Teacher on 06.02.2019. The petitioner who was eligible had applied to the

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post of Science Teacher (CBZ). He received an interview letter dated 10.03.2019 from the respondent No.6 requiring him to appear for an interview on 18.03.2020. He was interviewed by the committee on 18.03.2020 and was issued with an appointment order dated 13.10.2021. The administrator of the institution addressed a communication dated 13.10.2021 to the Commissioner of Primary and Secondary Education to consider approval of the appointment of the petitioner to grant-in-aid. The petitioner reported to duty on 21.10.2021. The petitioner contends that the State Government had issued a check list to approve appointment of teaching staff in private aided institutions which were all complied in the case of the petitioner.

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(ii) The respondent No.5 issued an official memorandum dated 15.11.2021 directing the Head Master of Government High School, Juganahalli to inspect Basaveshwara High School regarding the appointment of the petitioner, his performance and submit a report. Following this, an inspection was conducted and a report was submitted on 20.11.2021 to the Block Education Officer, N1 (North). The respondent No.9 filed a Revision Petition No.40/2021 under Sections 131 and

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133 of the Act, 1983 challenging the selection process. However, the revision petition was closed and the respondent No.9 was directed to avail the remedy of an appeal under Section 130 of the Act, 1983. The respondent No.9 again filed Revision Petition No.4/2022 under Sections 131 and 133 of the Act, 1983. The respondent No.1 without examining his jurisdiction to entertain it, allowed it and directed to conduct a fresh selection within 90 days.

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(iii) The petitioner contends that he filed an appeal against the said order in R.A.No.29/2023. However, the proceedings in the appeal were not held regularly. Therefore, the petitioner filed W.P.No.5703/2023 challenging the order dated 06.02.2023 passed in Revision Petition No.4/2022. However, the said writ petition was withdrawn in view of the assurance given by the authorities that the appeal would be disposed off at the earliest. The petitioner contends that R.A.No.29/2023 was dismissed in terms of an order dated 29.08.2023 and therefore, the petitioner is before this Court challenging the said order.

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(i) The learned counsel for the petitioner contended that once the respondent No.9 had challenged the selection and lost in Revision Petition No.40/2021, he could not have filed yet another Revision Petition No.4/2022 challenging the selection of the petitioner. Even otherwise, he contends that the impugned order dismissing the appeal filed by the petitioner is without considering the fact that the appointment order dated 13.10.2021 was issued by the management of the school with the concurrence of the State Government. Therefore, the said appointment order could not have been interfered with. He further contends that the order dated 09.09.2022 passed in Revision petition No.40/2021 contradicts the order dated 06.02.2023 passed in Revision Petition No.4/2022 and hence, the appeal ought to have been allowed by the respondent No.1.

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(ii) He contends that the approval of the appointment is pending consideration before the State Government.

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(iii) He contends entertaining a revision petition is opposed to Rule 5 of the Karnataka Educational Institutions (Appeal, Revision, and Review) (Amendment) Rules, 2006 (for

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short 'Rules, 2006'). Rule 3-A of Rules, 2006 states when an application is made to the State Government under Section 131 of Act, 1983, it shall not be entertained unless the alternative remedy under Section 130 of the Act, 1983 is exhausted. He therefore, contends that the impugned order violates Rule 3-A of the Rules, 2006. He also contends that revision under Section 131 of the Act, 1983 cannot be entertained, if a remedy of an appeal is provided for. He therefore, contends that the impugned order rejecting the appeal filed by the petitioner and the order dated 06.02.2023 allowing the Revision Petition No.4/2022 warrants interference.

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(i) The learned Additional Government Advocate

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for respondent Nos.1 to 3 and 5 on the other hand contends that as per the memorandum dated 07.12.2018 issued by the respondent No.1, permitting to fill up of the post of Assistant Teacher in C.B.Z. and Hindi, it was mandated that the appointment shall be in accordance with the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999 (for short 'Rules, 1999'). It was also mandated that the applicants shall

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possess required qualification and eligibility prescribed for the post. He contends that as per the paper publication issued by the respondent No.4, the qualification prescribed was a Bachelor's Degree in the concerned subject and Bachelor's in Education (B.Ed) or equivalent.

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(ii) He contends that as per the list of candidates who had applied, there were four candidates, of whom the petitioner had secured the lowest marks in the degree examination but had secured highest Marks in B.Ed. Hence, he contends that average of the two had to be taken. He contends that though the respondent No.1 had permitted the post of Assistant Teachers to be filled up within 90 days, the respondent No.4 had delayed the recruitment and had published a notice on 06.02.2019 inviting applications within 21 days. However, after lapse of nearly 01 year, the interview was conducted on 18.03.2020.

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(iii) He contends that as per the Rules, 1999, the selecting authority shall prepare a list of names on the basis of the average percentage of total marks in the qualifying examination in the order of merit. He contends that this was

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not followed in the instant case. He also contends that the selecting authority was bound to publish the list of marks obtained by each candidate in the interview which also was not complied. Likewise, the list of candidates for the interview and the list of marks obtained by them at the interview had to be published in the notice board of the office of the managing committee and a copy had to be sent to the appropriate competent committee within 45 days, which was also not complied with.

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(iv) He contends that a selection authority means a committee comprised of: a) the President/Secretary of the Managing Committee b) One Subject Expert nominated by the Managing Committee and c) One Representative of Department of Public instructions. However, the President/Secretary of the Managing Committee was not present and therefore there was a clear violation of the Rules, 1999. Therefore, he contends that the impugned order passed by the respondent No.1 was just and proper and does not call for any interference.

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(i) The learned counsel for the respondent No.6

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has opposed the writ petition contending inter alia that the post

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of Science Teacher fell vacant on 31.07.2013 in view of retirement of the incumbent. It is contended that respondent No.2 permitted the respondent No.6 to fill up the post by an order dated 07.12.2018. Accordingly, it published a recruitment notification on 06.02.2019. The petitioner and the respondent No.9 had applied for the said post. An interview was held on 18.03.2020 by the Director of the Sangha, a nominee of the department and a subject expert. The committee finalised the name of the petitioner and issued an order of appointment on 13.10.2021. It also addressed a communication to the competent authority for approving the appointment. Accordingly, the petitioner reported to duty on 21.10.2021. It is contended that the respondent No.5 had directed the Head Master of Government High School Juganahalli to visit the school and submit a report which was accordingly submitted.

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(ii) It is contended that the respondent No.9 challenged the selection process in Revision Petition No.40/2021 which was disposed off directing him to avail appeal remedy under Section 130 of the Act, 1983. Thereafter the respondent No.9 preferred an appeal before respondent No.1 which was allowed in terms of an order dated 06.02.2023. It is contended that respondent

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No.1 directed the respondent Nos.6 and 4 to issue a fresh publication and conduct a fresh recruitment process. It is contended that the petitioner challenged this order under Section 132 of the Act, 1983.

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(iii) It is contended that in a private educational institution a relationship of Master and Servant exists between management and employee and the department is only an approving authority. It is claimed that respondent No.9 had challenged the selection of the petitioner on the ground that there was no Chairman of the managing committee. It was claimed that when the process of selection was not in accordance with recruitment Rules, an employee does not get any right over the said post. It was further contended that approval of the appointment of the petitioner is still pending consideration which is now set aside by the impugned order. Therefore, it is contended that the order of appointment issued by the respondent No.4 cannot be given effect to.

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(iv) This apart it is contended that the petitioner has filed an appeal under section 132 of the Act, 1983, which deals with review of the orders and therefore, the petitioner has

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approached the wrong forum and hence, it was dismissed on merits. In short, it is contended that when the appointment is not in accordance with law, the impugned order cannot be found fault with.

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(v) It is further contended that in view of the impugned order, the petitioner is relieved from service with immediate effect in terms of an order dated 03.03.2023. The respondent No.4 has made a fresh publication dated 26.03.2023 inviting applications from suitable candidates. However, due to the code of conduct, 2023, the interview date was not fixed. It is claimed that the petitioner did not apply for the post. Thereafter, the respondent No.4 by its letter dated 23.11.2023 requested the permission of respondent No.3 to conduct an interview on 06.12.2023. Again on 06.12.2023 permission was sought to conduct an interview. Accordingly, on 06.12.2023 the respondent No.4 appointed its nominee for the selection committee and the date of interview was fixed on 20.12.2023. However, in view of the stay granted by this Court, the interview that was scheduled on 20.12.2023 was postponed.

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The learned counsel for the respondent No.9 reiterated the above contentions and submitted that the writ petition does not survive for consideration, as the petitioner is already relieved from service and steps are taken for fresh recruitment.

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I have considered the submissions of the learned counsel for the petitioner as well as the learned Additional Government Advocate for respondent Nos.1 to 3 and 5, learned counsel for the respondent Nos.6 and 9.

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The memorandum dated 07.12.2018 issued by respondent No.2 shows that the respondent No.4 was permitted to recruit an Assistant Teacher - CBZ within 90 days from the date of the publication of the order. The recruitment was to be in accordance with the Rules, 1999. Accordingly, the respondent No.4 conducted an interview and selected the petitioner and issued an order of appointment which was subject to approval by the respondent No.1. The respondent No.9 who was also one of the applicants being aggrieved by the selection filed Revision Petition No.40/2021 under Sections 131 and 133 of the Act, 1983. However, the said proceeding was

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closed directing the respondent No.9 to file appropriate appeal under Section 130 of the Act, 1983. This again was challenged by the respondent No.9 before respondent No.1 in Revision

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Appeal No.4/2022 under Sections 131 and 133 of the Act, 1983. The respondent No.1 in terms of the impugned order dated 06.02.2023 allowed the Revision Petition No.4/2022 and directed a fresh selection to be made. The petitioner has challenged this order under Section 132 of the Act, 1983 before the Principal Secretary to the State Government, who dismissed it in terms of the order dated 29.08.2023.

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In view of the above factual matrix, it is pertinent to understand the scope and purport of Sections 130, 131 and 132 of the Act, 1983, which are extracted below:

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"130. Appeals.- Save as otherwise provided in this Act, any person or Governing Council, aggrieved by an order passed by an officer or authority under this Act may within the prescribed period prefer an appeal to the prescribed appellate authority.

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131. Revision by the State Government.- (1) The State Government may either suo motu or on an application from any person interested, call for and examine the record of an educational institution or of any authority, officer or person in respect of

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any administrative or quasi-judicial decision or order, not being a proceeding in respect of which a reference to an arbitrator or an appeal to the High Court is provided, to satisfy themselves as to the regularity, correctness, legality or propriety of any decision or order passed therein, and if, in any case it appears to the State Government that any such decision or order should be modified, annulled or reversed or remitted for reconsideration, they may pass order accordingly: Provided that the State Government shall not pass any order adversely affecting any party unless such party has had an opportunity of making a representation.

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(2) The State Government may stay the execution of any such decision or order pending the exercise of powers under sub-section (1) in respect thereof. (3) Every application preferred under subsection (1) shall be made within such time and in such manner and accompanied by such fees as may be prescribed.

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132. Review.- (1) The State Government or the Commissioner of Public Instruction or the Director may suo motu at any time or on an application received from any person interested within ninety days of the passing of any order under the provisions of this Act review any such order, if it was passed by them or him under any mistake,

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whether of fact or of law, or in ignorance of any material fact.

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(2) The provisions contained in the proviso to sub-section (1) and in subsections (2) and (3) of section 131 shall, so far may be, apply in respect of any proceeding under this section as they apply to a proceeding under subsection (1) of that section."

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Likewise, it is appropriate to extract the provisions

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of Rule 5 of Annexure-I of The Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999 (henceforth referred to as "Rules, 1999") and the same is extracted below:

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"5. Interview.- (1) The selecting authority shall interview the eligible candidates from the selection list under clause 3 and award marks on the basis of their performance in the interview. The maximum marks for interview shall be fifteen.

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(2) The selecting authority shall publish on the notice board of its office on the day on which interview is held or on the day following but before the commencement of the interview on that day, a list of marks obtained by each candidate in the said interview:

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Provided that where the interview is held in any place other than the place of its office, the said list shall also be published in such other place in addition to the office."

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A perusal of Section 130 of the Act, 1983

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establishes beyond doubt that any person aggrieved by any order passed by any officer or authority under the provisions of the Act, is entitled to file an appeal before the prescribed authority. However, a revision petition under Section 131 of the Act, 1983 can be entertained by the State Government either suo moto or on an application in respect of any administrative or quasi judicial decision or order to satisfy the regularity, correctness, legality or propriety of such decision or order. Section 132 of the Act, 1983 on the other hand, speaks of the power of the State Government to review any order passed by them under a mistake of either fact or law or in ignorance of any material fact.

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Therefore ideally, the respondent No.9 ought to have invoked the power of the appellate authority under Section 130 of the Act, 1983 or seek revision of the order passed in a revision petition under Section 131 of the Act,

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However, the respondent No.9 chose to file a revision petition under Section 131 of the Act, 1983 which was disposed off in terms of an order dated 09.09.2022 directing him to avail the remedy of an appeal under Section 130 of the Act, 1983.

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The respondent No.9 instead of challenging the said order, again invoked the power of the State Government under Sections 131 and 132 of the Act, 1983, which was allowed in terms of an order dated 06.02.2023. When the petitioner challenged the said order before the State Government, it ought to have exercised its power under Section 132 of Act, 1983 to annul a wrong committed by the respondent No.1 in entertaining a second revision petition.

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Be that as it may, since the impugned recruitment was of the year 2018, no purpose would be served in directing the parties to approach the regulatory authorities under the Act, 1983. It is relevant to note that the selection committee was not constituted as per Rule 5 of Annexure - I of Rules, 1999 extracted above. Therefore, the selection is not in accordance with the Rules, and hence, it is appropriate to direct the respondent No.6 to conduct a fresh interview of all the

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candidates who had applied pursuant to the paper publication dated 06.02.2019 instead of issuing a fresh publication and conducting a fresh recruitment process, as this may prove disadvantageous to the petitioner and respondent No.9.

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In that view of the matter, the impugned order passed by the State Government dated 29.08.2023 passed in Revision Petition No.29/2023 and the consequent order dated 06.02.2023 passed by the respondent No.1 in Revision Petition No.4/2022 are quashed. The respondent no.6 is directed to conduct a fresh interview of all the four candidates, who had applied for the post of Assistant Teacher (CBZ), if available and interested as per the notification published in the news paper dated 06.02.2019.

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It is needless to mention that the selection shall be in accordance with the Rules, 1999.

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Sd/(R. NATARAJ) JUDGE

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HJ

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List No.: 1 Sl No.: 12

Sri. Prakash M E v. the Commissioner

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Sri. Prakash M E v. the Commissioner

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