Vishwanath S K Vs the State of Karnataka

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NC: 2025:KHC:14806 WP No. 36001 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF APRIL, 2025

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 36001 OF 2013 (S-RES)

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BETWEEN:

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VISHWANATH S.K. S/O S.KRISHNA KUMAR, AGED 37 YEARS, R/O SANTHOSH NIVAS, NEAR TELEPHONE EXCHANGE, AA.NA.KRU. EXTENSION, KOOTE, ARAKALGUD TOWN AND TALUK, HASSAN DISTRICT-573102.

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…PETITIONER

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(BY SRI. G.S.NAVEEN KUMAR, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA DEPARTMENT OF EDUCATION, (HIGH SCHOOL) M.S.BUILDING, BANGALORE-560001 REPRESENTED BY ITS PRINCIPAL SECRETARY.

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THE COMMISSIONER /DIRECTOR DEPARTMENT OF PUBLIC INSTRUCTION (HIGHER SECONDARY), OFFICE OF THE COMMISSIONER, NRUPATHUNGA ROAD, BANGALORE-560001.

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THE D.D.P.I. (ADMINISTRATION) DEPARTMENT OF PUBLIC INSTRUCTION, CHICKMAGALUR-577101

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SRI. S. MANASA EDUCATION SOCIETY (REG) S.P.ROAD, KUSHALANAGARA EXTENSION, SAKALESHPURA,

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HASSAN DISTRICT-573134 REPRESENTED BY ITS SECRETARY.

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SRI. CHANDRASHEKAR A.B. S/O BASAPPA, AGED ABOUT 47 YEARS, WORKING AT ASSISTANT TEACHER (ARTS) S.MANASA HIGH SCHOOL, ALDURU-577111. CHICKMAGALUR TALUK AND DISTRICT.

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SRI. SATHYANARAYANA M.N. FATHER'S NAME NOT KNOWN, AGED ABOUT 44 YEARS, WORKING AS ASST. TEACHER (SCIENCE PCM) S.MANASA HIGH SCHOOL, ALDURU-577111, CHICKMAGALUR TALUK AND DISTRICT.

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SRI. R KRISHNAPPA S PUJARI FATHERS NAME NOT KNOWN, AGED ABOUT 35 YEARS, WORKING AS ASST. TEACHER (SICENCE -CBZ) S.MANASA HIGH SCHOOL, ALDURU-577111, CHICKMAGALUR TALUK AND DISTRICT.

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SRI. MUNISWAMY FATHERS NAME NOT KNOWN, AGED ABOUT 39 YEARS, WORKING AS PHYSICAL EDUCATION TEACHER GRADE-1, S.MANASA HIGH SCHOOL, ALDURU-577111, CHICKMAGALUR TALUK AND DISTRICT.

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…RESPONDENTS

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(BY SRI. JAYALINGAYYA MUDENOOR MATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOS.1 TO3 ; SRI. VISHWANATH R. HEGDE, ADVOCATE FOR RESPONDENT NO.4 (THROUGH VC);

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SRI. K. SATISH, ADVOCATE FOR RESPONDENT NO.5; NOTICE SERVED ON RESPONDENT NOS.6 TO 8)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 09.07.2013 PASSED BY THE 1^ST RESPONDENT IN NO.ED.46 LBP/2013 VIDE ANNEXURE-A IN SO FAR AS THE APPOINTMENT OF 5^TH RESPONDENT IS CONCERNED AND ETC.

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THIS PETITION, COMING ON FOR FURTHER 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 challenged an order bearing No.ED.46.LBP/2013 dated 09.07.2013 passed by respondent No.1 approving the appointment of respondent No.5. The petitioner has sought for a writ in the nature of mandamus to direct the respondent No.1 to grant approval to his appointment and also admit his appointment to salary grant as Assistant High School Teacher (Arts).

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The petitioner contends that he is a B.A. graduate with a B.Ed. qualification and belongs to Scheduled Caste. He was appointed on 02.06.2008 as an Assistant Teacher to teach Arts (Social Science) in a High School established by respondent No.4. The name of the petitioner was proposed for approval and grant-in-aid by a communication dated

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15.09.2009/24.09.2009 by the respondent No.2. In the same communication, the name of the respondent No.5 was recommended for approval of appointment as Assistant Teacher (English) and for grant in aid. It was mentioned therein that respondent No.5 had completed Bachelor's Degree in Arts and possessed a B.Ed. Degree. However, in terms of a communication dated 13.02.2013 addressed by the respondent No.2 to the respondent No.1, it was specifically mentioned that respondent No.5 did not possess required qualification in English to be appointed as Assistant Teacher (English) as he had not chosen English as teaching method during his B.Ed. Degree. Following this, respondent No.2 addressed a communication dated 30.05.2013 to the respondent No.1 stating that respondent No.5 did not possess qualification to be appointed to the post of Assistant Teacher (English) and that he possessed qualification to be appointed as Assistant Teacher (Arts). It was also recommended in the said communication that the petitioner was appointed in the year 2008, while respondent No.5 was appointed in the year 1994 and therefore, the name of the petitioner could be dropped. The petitioner contends that he was fully eligible and qualified for

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appointment to the post of Assistant Teacher (Arts) as per the Government Order dated 02.06.2011. He contends that appointment of respondent Nos.6, 7 and 8 was sent for approval and for grant though they were appointed later than him. Consequent to the letter dated 30.05.2013, the respondent No.1 passed an order dated 09.07.2013 dropping the name of the petitioner and approving the appointment of respondent No.5 and admitting his appointment to salary grant.

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Being aggrieved by the order of respondent No.1 approving the appointment of respondent No.5 as Assistant Teacher (Arts) (English) and dropping his name for approval and grant-in-aid to the post of Assistant Teacher (Arts), the petitioner is before this Court.

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The learned counsel for the petitioner contends that though the respondent No.5 and the petitioner were appointed on different dates, the respondent No.2 recommended both their names for approval and appointment to grant-in-aid in different streams. While the petitioner was recommended for the post of Assistant Teacher (Arts), respondent No.5 was recommended for the post of Assistant Teacher (English).

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However, respondent No.1 based on the communication dated 30.05.2013 issued by respondent No.2, approved the appointment of the respondent No.5 as Assistant Teacher (Arts) (English) and dropped the name of the petitioner. He contends that if the respondent No.5 did not have the qualification to be appointed as Assistant Teacher (English), then the only inevitable consequence was that his recommendation must have been rejected and petitioner's appointment as Assistant Teacher (Arts) must have been approved and admitted for salary grant.

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Per contra, respondent No.5 filed statement of objections contending that he possessed a Bachelor's Degree in Arts and though he was appointed as Assistant Teacher (English), he was teaching Arts as a subject. Therefore, his name was recommended for approval and for salary grant as Assistant Teacher (Arts) (English). Besides this, respondent No.5 contends that he was appointed in the year 1994, while the petitioner was appointed on 02.06.2008 and therefore, respondent No.2 was justified in recommending the approval of the appointment of the respondent No.5 as Assistant Teacher (Arts) (English). He further contends that he is on the verge of

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retirement and therefore, at this point in time, if the approval

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of his appointment is disturbed, he would be prejudiced.

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(i) The learned counsel for respondent No.5 reiterated the above contentions and submitted that respondent No.5 possessed the qualification to be appointed as an Assistant Teacher (Arts) (English) and since respondent No.5 was appointed much earlier than petitioner, his appointment was rightly approved and admitted for salary grant.

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(ii) In support of his contentions, the learned counsel for respondent No.5 has relied upon the following judgments:-

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a) Dr. M.S. Mudhol and another vs. S.D.

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Halegkar and others [(1993) 3 SCC 591] to contend that the writ petition is filed belatedly and therefore, no indulgence can be shown to the petitioner.

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b) Girjesh Shrivastava and others vs. State of

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Madhya Pradesh and others [(2010) 10 SCC

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707] and Rajesh Kumar and others vs. State of Bihar and others [(2013) 4 SCC 690] to

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contend that the respondent No.5 is not guilty of any misconduct in getting his appointment approved and that he has been working eversince the date of his appointment till it was approved and till now and therefore, the respondent No.5 cannot be put on the guillotine for no fault of his.

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c) Judgment of this Court in W.P.No.39880/2012, where under similar circumstances, Coordinate Bench of this Court had treated the appointee as excess staff and he was permitted to discharge his duties without prejudice until he attained superannuation.

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(iii) The learned counsel for respondent No.5 therefore, contends that respondent No.5 also be extended the same benefit since he is on the verge of his retirement.

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(i) The respondent Nos.1 to 3 filed statement of

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objections contending that the petition is not maintainable in view of an alternate efficacious remedy available under Section 130 of the Karnataka Education Act, 1983. It is contended that

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Section 130 of the Karnataka Education Act, 1983, specifically provides for an appeal remedy by any person or governing council aggrieved by an order passed by an Officer or Authority under the Karnataka Education Act, 1983.

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(ii) It is contended that appointment of respondent No.5 was recommended by respondent No.4 and the same was approved by respondent No.3 in view of the Government Order No.ED-343/PMC/2008, dated 02.06.2011. It is contended that the Government Order clearly stipulated that the eligible candidates may be admitted for grant-in-aid if the institutions have started running the school in the year 1992-93/94-95. Further, the Government Order also stipulates that if there are no Scheduled Caste and Scheduled Tribe candidates then as a one time measure the appointment of grant-in-aid teachers shall be done from amongst the General Category. It is contended that since respondent No.5 was in continuous service from the time the school was commenced in the year 1992-93/94-95, he was eligible to be appointed as a grant-inaid teacher in the absence of any other SC & ST teacher as per the Government Order No.ED 343/PMC/2008, dated 02.06.2011.

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(iii) It is further contended that respondent No.5 has

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also received a certificate from the appointing authority for having served continuously for a period of 19 years. Therefore, it is submitted that in view of the Government Order dated 02.06.2011, there is no illegality in dropping the name of the petitioner and appointing respondent No.5 as a Grant-in-aid teacher.

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The learned Additional Government Advocate

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representing respondent Nos.1 to 3 reiterated the above contentions and contended that respondent No.2 had recommended to respondent No.1 to approve the appointment of respondent No.5 since he had entered services prior to the petitioner. He contends that respondent No.5 possessed qualification to be appointed to the post of Assistant Teacher (Arts) and therefore, his appointment was approved and admitted to salary grant. He contends that the order passed by the respondent No.1 is unexceptionable and was in the light of the recommendation made by the respondent No.2.

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Learned counsel for respondent No.4 submitted that respondent No.5 was appointed as Assistant Teacher (English) and not as Assistant Teacher (Arts).

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(i) A rejoinder is filed by the petitioner to the

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statement of objections refuting the contention of the respondent Nos.1 to 3 that the writ petition filed by the petitioner is not maintainable, in view of an alternative and efficacious remedy available under Section 130 of the Karnataka Education Act, 1983. It is contended that the petitioner has challenged an order dated 09.07.2013 passed by the respondent No.1 and that there is no appeal remedy against it.

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(ii) It is contended that in the Government Order dated 02.06.2011, it is mentioned that the teacher who is appointed prior to 04.09.2008 by the management, was bound to work as such until the recommendation is made to approve his/her appointment. It is claimed that the petitioner was appointed by an order dated 02.06.2008 by the management for the post of Social Science teacher and he was working continuously in the said post. All appointments made by the respondent No.4 to

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teaching and non-teaching posts were sent for approval by an order dated 13.03.2009, which included the names of petitioner and respondents including respondent No.5. Therefore, it is clear that the petitioner was appointed earlier to 04.09.2008 and he belongs to Scheduled Caste and therefore, he is eligible for approval and admission for grant. Since the petitioner was working in the post of Assistant Teacher, Social Science (Arts - Social), respondent No.5 could not have been considered. As already stated, the respondent No.4 institution had recommended all the staff who were working in the institution in their respective subjects and against the name of respondent No.5 it was clearly mentioned that he was working as English teacher and sought admission to the grant-in-aid against the post of English teacher, though respondent No.2 had categorically mentioned that respondent No.5 is not eligible.

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(iii) It is contended that respondent No.5 has rendered service as Assistant Teacher in English and not in Social Science and it is nobody's case that the respondent No.5 had worked as Assistant Teacher (Social Science). Since his initial appointment to the said post was itself erroneous, his service/seniority will not come to his aid, to treat him as a

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Social Science teacher. It is contended that the petitioner was appointed by the respondent No.4 by an order dated 02.06.2008 and his appointment to the said post is also approved by the competent authority without grant. Now, it is the matter for consideration for admitting the said post for grant-in-aid. As per the Government Order, there is no condition with regard to seniority. It is contended that in the Government Order dated 02.06.2011, the relaxation can be granted in the event of Scheduled Caste/Scheduled Tribe reserved candidate is not available as one time measure.

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(iv) It is contended that the contentions of the

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respondent No.5 in the objection statement at paragraph No.6 that the petitioner is the only Scheduled Caste candidate is false. There is no condition in the Government order dated 02.06.2011 that the candidates should have been appointed prior to 02.02.2000. On the other hand, it is clear that the appointment should be prior to 04.09.2008. Admittedly, the petitioner is appointed by an order dated 02.06.2008 and working with effect from 03.06.2008. Hence, the contentions of the respondent No.5 in this regard are all without any substance. On the other hand, the petitioner is dropped to

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accommodate the respondent No.5, even though, he is appointed as Assistant Teacher (English) and not appointed and worked as Assistant Teacher (Social Science). Such an action is illegal, arbitrary and contrary to law. It is contended that the respondent No.5, who is not eligible and entitled to be considered for the post of Assistant Teacher (Social Science) is harping against the petitioner by mentioning that he is eligible to be appointed as English Teacher as per the Government Orders then exists and also stating that the subsequent change of rules will not disqualify his appointment made earlier by referring to the decision of the Hon'ble Court, which has no relevance. It is contended that if the respondent No.5 has any grievance, he can question the decision/action of the authorities in respect of the post, to which, he was appointed initially and seeking for consideration to the post of Assistant Teacher (English) and not the post in which, the petitioner is working.

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I have considered the submissions of the learned

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counsel for the petitioner as well as the learned counsel for the respondent No.5, learned Additional Government Advocate for

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respondent Nos.1 to 3 and the learned counsel for respondent No.4.

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The documents enclosed along with the writ petition as well as the documents enclosed along with the statement of objections filed by the respondent No.5 establish beyond doubt that the petitioner was appointed as Assistant Teacher (Arts), while respondent No.5 was appointed as Assistant Teacher (English) at the respondent No.4. It is undisputed that respondent No.5 did not possess the prescribed qualification and did not pursue English as the teaching method in B.Ed. degree. It is not in dispute that the appointment of the petitioner and the respondent No.5 was forwarded to the respondent No.2 for approval by respondent No.1. Before the said recommendation was considered, respondent No.2 appears to have addressed a communication to the respondent No.1 to treat the respondent No.5 as Assistant Teacher (Arts) since he did not possess qualification to be treated as Assistant Teacher (English). It is relevant to note that at the relevant point in time, the petitioner was already appointed and working as Assistant Teacher (Arts). Nonetheless, respondent No.1 without having regard to the fact that the respondent No.5 was

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not an Arts Teacher at the respondent No.4, approved the appointment of the respondent No.5 as Assistant Teacher (Arts) instead of Assistant Teacher (English). As a result, the opportunity of petitioner for getting his appointment approved with salary grant was frittered away to confer benefit on respondent No.5. The petitioner is therefore, rightly before this Court challenging the impugned order approving the appointment of respondent No.5 and dropping his name.

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The respondent Nos.1 and 2 having noticed that respondent No.5 did not possess qualification for being appointed as Assistant Teacher (English), could not have tampered with the recommendation made by respondent No.3 for approval and for salary grant by treating the respondent No.5 as Assistant Teacher (Arts). Therefore, as rightly contended by the learned counsel for the petitioner, the petitioner was entitled to be granted the benefit of approval of his appointment and salary grant.

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Since the respondent Nos.1 and 2 have goofed up the case by conferring the benefit on the respondent No.5 and depriving the legitimate entitlement to the petitioner, a

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direction is issued to respondent Nos.1 and 2 to approve the appointment of the petitioner and to admit him to salary grant. On such approval and admission to grant-in-aid, the petitioner shall be suitably deputed to any institution as per the directions of respondent Nos.1 and 2.

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In view of the peculiar facts and circumstances of this case, since it is stated that respondent No.5 is on the verge of his retirement, it is only appropriate to direct respondent Nos.1 and 2 not to disturb the appointment of respondent No.5 and continue his service till he attains the age of superannuation and any unpaid arrears of salary shall be released to him.

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With the aforesaid observation, this writ petition stands disposed off . The respondent Nos.1 and 2 shall take steps for approval of the appointment of the petitioner and also for admission to salary grant within three months from the date of receipt of a certified copy of this Order.

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