Sri Mohan Kumar B S Vs the State of Karnataka

SRI MOHAN KUMAR B S S/O LATE SHIVARAJAIAH AGED ABOUT 23 YEARS, D GROUP EMPLOYEE WORKING AT NARENDRA HIGH SCHOOL 36/3, 2ND MAIN, 2ND CROSS AVALAHALLI, MYSURU ROAD BENGALURU 560 026.

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…PETITIONER

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(BY SRI. SUNDARESH H C., ADVOCATE)

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AND:

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Digitally signed by HEMALATHA A Location: HIGH COURTOF KARNATAKA

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THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY (PRIMARY AND SECONDARY EDUCATION) M.S BUILDING, BENGALURU 560 001.

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THE COMMISSIONER OF PUBLIC INSTRUCTION DEPT OF PUBLIC INSTRUCTIONS NRUPATHUNGA ROAD K.R CIRCLE, BENGALURU 560 001.

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THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS DEPT OF PUBLIC INSTRUCTIONS BENGALURU SOUTH DISTRICT KALASIPALYA, BENGLAURU 560 002.

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THE BLOCK EDUCATIONAL OFFICER DEPT OF PUBLIC INSTRUCTIONS

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HC-KAR

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SOUTH DIVISION II, TULASI THOTA POORNAIAH CHATRA BENGLAURU 560 002.

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THE CHEIF EXECUTIVE OFFICER BENGALURU URBAN ZILLA PANCHAYATH S KARIYAPPA ROAD, BANASHANKARI BENGALURU-560 050.

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THE SECRETARY NARENDRA EDUCATIONAL ASSOCIATION (R) PARK ROAD, NO. 36/3 2ND MAIN, 2ND CROSS AVALAHALLI MYSURU ROAD BENGALURU 560 026.

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…RESPONDENTS

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(BY SRI.VIKAS ROJIPURA, AGA FOR R1 TO R4: R5 AND R6 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE COMMUNICATION ISSUED BY THE DDPI R-3 BEARING NO.ANU4-ANU.AA.NE/41/2021-22 DATED: 25.11.2021 AS PER ANNEXURE-N. AND ETC.

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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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CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

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ORAL ORDER

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This writ petition is filed under Articles 226 & 227 of the Constitution of India, challenging the endorsement dated 25.11.2021 vide Annexure-N, issued by respondent No.3, whereby, at the request of the petitioner for

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HC-KAR

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appointment on compassionate grounds has been rejected

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in view of the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) (Amendment) Rules, 2017 (for short, ‘Amended Rules, 2017’).

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The petitioner’s father was working as a Physical Education Teacher at Kanaka Vidya Mandira School, Moodalapalya, Bengaluru run by the sixth respondent – Association. Thereafter, he was transferred to Sri Patel Gullappa Kannada Higher Primary School, Muneshwara Block, Avalahalli, Bengaluru run by the sixth respondent – Association. When he was in service, he died on 07.08.2015. The petitioner, who is the son of late C.V.Shivarajaiah filed an application for appointment on compassionate grounds, as per Annexure-C dated 15.06.2016. The Management has considered the representation and he has been appointed in the Group-D post. Thereafter, his name has been sent for approval to

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HC-KAR

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the Government. By the impugned order dated 25.11.2021 vide Annexure-N, the third respondent rejected the approval in view of Note 2 to the Amended Rules, 2017. The same is extracted below:

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“Note-2 – Auxiliary non-teaching services in an aided high school including services such a watch and ward, class room arrangements, daily upkeep of school premises, support in science labs, movement of teaching-learning materials may be obtained on outsource basis. The Government may provide suitable grant-in-aid for such outsourced services.”

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The learned counsel for the petitioner submits

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that, before the Amended Rules, 2017 came into force, on 21.11.2016 itself, the Management has appointed him on compassionate ground as Group-D employee, which post was admitted to grant-in-aid. Therefore, the Amended Rules, 2017 is not applicable to the case of the petitioner. In support of his contention, he has relied on the judgment of this Court in W.P.No.22551/2021 disposed of

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HC-KAR

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on 08.08.2023. Hence, he sought for allowing the writ petition.

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Per contra, the learned AGA appearing for the respondent – State, submits that, the Amended Rules, 2017 clearly prohibits appointment of Group-D post, the only method for appointment of Group-D post is, by outsourcing. As on the date of approval of the recommendation sent by the Management, the Amended Rules, 2017 was in force. Therefore, the authority has rightly rejected the approval. Hence, he sought for dismissal of the writ petition.

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Heard the learned counsel for the parties and perused the petition papers.

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In similar circumstances, this Court in W.P.No.22551/2021 disposed of on 08.08.2023 considered the Amended Rules, 2017. The relevant portion is extracted below:

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HC-KAR

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“8. As per Annexure-N the Management has categorically stated that there was an existing Group-D post available as the result of retirement of another employee. This would, therefore, indicate that there is an existing approved Group-D post available to be filled up. If there is indeed an existing Group-D post available to be filled up, there can be no bar for considering the petitioner on compassionate basis since all that would be done is that the approved Group-D post would be filed up by appointing the kin of a deceased employee, instead of calling for fresh applications.

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9. The reliance placed on Note No.2 to the Rules may not be relevant to the instant case since Note No.2 essentially is a part of the Recruitment Rules which states that in respect of outsource services, the institutions are required to obtain auxiliary NonTeaching staff services by outsourcing the entire services. This Note cannot in any way extinguish the existing approved Group-D post which is required to be filled up.”

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In the case on hand, the petitioner was appointed by the Management before the Amended Rules, 2017 came into force, i.e., on 21.11.2016. The appointment

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