Karnataka High Court
Dr Roopa K vs The State Of Karnataka on 8 July, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2024:KHC:26285
WP No. 46490 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 46490 OF 2012 (S-RES)
BETWEEN:
DR ROOPA K
AGE: 40 YEARS,
W/O DR. KRISHNAMOORTHY,
ASSISTANT PROFESSOR,
DEPARTMENT OF ECONOMICS,
CANARA FIRST GRADE COLLEGE,
MANGALORE D.K, DISTRICT
...PETITIONER
(BY SRI. V. LAKSHMINARAYANA, SENIOR ADVOCATE
FOR SRI. VIKRAM BALAJI B L., ADVOCATE)
AND:
Digitally signed by
GIRIJA A
BYAHATTI
Location: HIGH 1. THE STATE OF KARNATAKA
COURT OF
KARNATAKA
DHARWAD
REPRESENTED BY ITS
BENCH
DHARWAD
Date: 2024.08.03
SECRETARY TO GOVERNMENT,
11:18:48 +0530
HIGHER EDUCATION DEPARTMENT,
M.S. BUILDING, BANGALORE 560001
2. THE COMMISSIONER
DEPT.OF COLLEGIATE EDUCATION
PALACE ROAD,
BANGALORE 560001
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NC: 2024:KHC:26285
WP No. 46490 of 2012
3. THE DIRECTOR
DEPT.OF COLLEGIATE EDUCATION
PALACE ROAD, BANGALORE-560001
4. THE JOINT DIRECTOR
DEPT. OF COLLEGIATE EDUCATION,
PALACE ROAD, BANGALORE-560001
5. THE JOINT DIRECTOR
DEPARTMENT OF COLLEGIATE EDUCATION,
REGIONAL OFFICE,
MANGALORE
...RESPONDENTS
(BY SRI. REUBEN JACOB, AAG A/W SRI. PRINCE ISAC,
AGA)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ENDORSEMENT DT.7.9.12, ISSUED BY THE
DIRECTOR OF COLLEGIATE EDUCATION, BANGALAORE
TRUE COPY OF WHICH IS PRODUCED AT ANN-H & THE
ENDORSEMENT DT.11.8.11 ISSUED BY THE REGIONAL
JOINT DIRECTOR OF COLLEGIATE EDUCATION
MANGALORE TRUE COPY OF WHICH IS PRODUCED AT
ANN-K; DIRECT THE RESPONDENTS TO RECKON THE
SERVICES OF THE PETITIONER WITH EFFECT FROM
1.7.1994 UP TO 29.2.2008, IN ACCORDANCE WITH
CLAUSE 17 OF THE GO DT.15.11.1999 TRUE COPY OF
WHICH IS PRODUCED AT ANN-J & FURTHER GRANT
BENEFIT OF THREE INCREMENTS TO THE
PETITIONERS FOR ACQUIRING PH.D IN ACCORDANCE
WITH GO DT.31.12.2008, TRUE COPY OF WHICH IS
PRODUCED AT ANN-L & THEREAFTER CONSIDER THE
CASE OF THE PETITIONER FOR PLACEMENT AS
SR.GRADE & SLECTION GRADE & FOR INCLUSION OF
HER NAME IN THE LIST PERTAINING TO ELIGIBLE
CANDIDATES FOR THE POST OF PROFESSOR.
THIS PETITION, COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:26285
WP No. 46490 of 2012
ORDER
The petitioner is working with the Department of Economics in M/s Canara First Grade College, Mangalore. The petitioner's grievance is with the following:
[a] the Endorsement dated 07.09.2012 [Annexure-H] issued by the Director, Department of Collegiate Education, Bengaluru [the third respondent], and [b] the Endorsement dated 11.08.2011 [Annexure-K] issued by the Joint Director, Department of Collegiate Education, Bengaluru [the fourth respondent].
The petitioner has sought for directions to the respondents to reckon her services between 01.07.1994 and 29.02.2008 for the purposes of being admitted to UGC pay scale, Seniority and for -4- NC: 2024:KHC:26285 WP No. 46490 of 2012 necessary fitment with the three increments because she has completed her doctoral work in the month of August 2005.
2. The third respondent has issued the impugned Endorsement dated 07.09.2012 [Annexure-H] informing the petitioner that because her appointment with the Institution is approved as only against a vacancy that is created with the superannuation of Sri. H. Ramesh Kedilaya on 29.02.2008, her services prior to the date on which the said post fell vacant cannot be considered. The fourth respondent has issued the next impugned Endorsement dated 11.08.2011 informing the petitioner that her request for grant of increments with she completing her doctoral work would be examined and communicated to her.
3. The petitioner has been before this Court on three other earlier occasions apart from the -5- NC: 2024:KHC:26285 WP No. 46490 of 2012 present petition. The details of these writ petitions are as follows:
IN W.P.No.17409/2007 [S-RES]:
3.1 The petitioner's first writ petition is in W.P.No.17409/2007 [S-RES], which she has filed for directions for release of salary pursuant to the Government's order dated 19.08.2006. This writ petition is disposed of by this Court on 11.04.2008 observing that no prejudice would be caused to the respondents if they consider the petitioner's representations in the backdrop of the post of a Lecturer in the Department of Economics falling vacant with Sri. H. Ramesh Kediliya retiring from service on 29.02.2008.
IN W.P.No.12408/2010 [S-RES]:
3.2 The petitioner has filed this writ petition in W.P.No.12408/2010 [S-RES] for directions to the respondents to reckon her services for the purposes -6- NC: 2024:KHC:26285 WP No. 46490 of 2012 of extending Career Advancement Scheme in terms of the Government's orders dated 30.03.1990 and 15.11.1999. This writ petition is disposed of on 23.04.2010 with directions to the respondents to consider the petitioner's representation observing that no prejudice would be caused to the respondents if there is such a direction.
IN W.P.No.38828/2010 [S-RES] 3.3 The petitioner's next writ petition is in W.P.No.38828/2010 [S-RES] and in this writ petition, the petitioner has sought for directions to the respondents to consider her service from 1994 to 2008 in accordance with the relevant UGC Regulations. This writ petition is disposed of on 28.03.2012 directing the respondents to consider the petitioner's representations for inclusion of her service from 1994 to 2008 in accordance with the relevant UGC Guidelines within a certain timeline. -7-
NC: 2024:KHC:26285 WP No. 46490 of 2012
4. The petitioner is appointed as a Lecturer on contract by the Institution, which is admitted to Grant-in-aid, on 01.07.1994. The petitioner is appointed as a permanent employee on 12.09.2001 by the Institution but subject to the Government's approval. If the petitioner in the meanwhile had successfully completed her State Level Eligibility Test [SLET] in the year 1995, she has completed her doctoral work in the month of August 2005. After the orders of this Court in the aforesaid proceedings in W.P.No.17409/2007 [S-RES], the petitioner is issued with the Endorsement dated 31.07.2008 informing her that she cannot be admitted to Salary Grant.
5. The petitioner has called this Endorsement in question in an appeal under Section 130 of the Karnataka Education Act, 1983. This appeal is allowed on 10.07.2009. The Appellate Authority has concluded that the petitioner's -8- NC: 2024:KHC:26285 WP No. 46490 of 2012 appointment for approval must be examined in the light of the fact that a post has fallen vacant with Sri. H. Ramesh Kediliya retiring on 29.02.2008, and that because the petitioner's appointment is with a minority Institution, her appointment as a permanent employee on 12.09.2001, must be duly respected and her appointment must be approved as of 12.09.2001.
6. The Appellate Authority has further concluded that the petitioner's seniority must be reckoned from 12.09.2001 and admitted to UGC pay scale from such date without back wages, but with the fitment effective from 01.03.2008. The Appellate Authority's order has been accepted by both the petitioner and the State Government and therefore, the State Government was consequentially required to issue appropriate Administrative Orders in consonance thereof. However, the State Government has issued Administrative Order dated -9- NC: 2024:KHC:26285 WP No. 46490 of 2012 19.11.2009 granting approval for the petitioner's appointment with the Institution with effect from 29.02.2008.
7. The petitioner, arguably, not being satisfied with this order on different counts such as, she is not given any increment or benefit under Career Advancement Scheme [CAS] for the service rendered for the period prior to 29.02.2008 and that this order was not in consonance with the Appellate Authority's order, has filed the inter-mediate writ petition in W.P.No.12408/2010 [S-RES], which is disposed of as aforesaid resulting with the impugned Endorsements by the third and fourth respondents.
8. Sri. V. Lakshminarayana, the learned Senior counsel for the petitioner, submits that this Court must firstly consider whether the Government could have traversed beyond the Appellate Authority's Order dated 10.07.2009 and issued Administrative Order dated 19.11.2009 limiting the
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NC: 2024:KHC:26285 WP No. 46490 of 2012 approval for the period commencing from 01.03.20081 denying to the petitioner the advantage of seniority from 12.09.2001 and fitment with effect from 01.03.2008. Sri. Reuben Jacob, the learned Additional Advocate General [AAG] for the respondents, is heard in the light of this particular grievance, and the learned AAG supports the decision in the light of the reasons assigned in the Administrative Order dated 19.11.2009 emphasizing that the petitioner has not specifically called in question this Administrative Order in the present writ petition.
9. The Government while passing this Administrative Order dated 19.11.2009, in the light of the Appellate Authority's order dated 10.07.2009, has firstly opined that the Institution is not declared a minority Institution. This Court must observe that nothing is brought on record for this Court to opine 1 Consequent to the retirement of Sri Ramesh Kedilaya w.e.f. 29.02.2008.
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NC: 2024:KHC:26285 WP No. 46490 of 2012 that this would be a relevant consideration especially with the Appellate Authority's finding that the petitioner's services must be approved with effect from 12.09.2001 because her appointment is by a minority Institution and therefore, this reason must be found to be extraneous. The Government has next reasoned that the petitioner would have a workload of 13 hours without specifying whether it is for a week or a month or any period otherwise, or how that this particular workload could be relevant.
10. If these two reasons cannot justify the Administrative Order dated 19.11.2009, this Court must opine that the benefit of the Appellate Authority's order dated 10.07.2009 cannot be denied to the petitioner on the ground that the she has not called in question the Administrative Order when it cannot be disputed that the petitioner has filed repeated representations for consideration of protection of her past service under CAS and for
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NC: 2024:KHC:26285 WP No. 46490 of 2012 UGC pay scale, especially with the Appellate Authority's Order not being called in question.
11. The petitioner's claim for seniority and fitment in UGC pay scale from the respective dates must be considered in the light of the Appellate Authority's Order dated 10.07.2009. This Court must opine that despite the Appellate Authority's order in favour of the petitioner if the Administrative Order were to prevail on the ground that the petitioner has not called that order in question notwithstanding these circumstances, would be denying the benefits taking a pedantic approach. Therefore, there must be appropriate orders in this regard in favour of the petitioner.
12. Sri. V. Lakshminarayana next contends that this Court must direct the respondents to protect the petitioner's service from 01.07.1994 in the light of the Government Order dated 23.09.2009 [Annexure-G]. The learned Senior counsel canvasses
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NC: 2024:KHC:26285 WP No. 46490 of 2012 that the petitioner's service from 01.07.1994 must be protected for the purposes of grant of UGC pay scale because the petitioner was in ad hoc employment from 01.07.1994 for more than a decade i.e., until her permanent appointment on 12.09.2001 and there was no break in her service and her appointment was pursuant to the recommendations of a duly constituted Selection Committee.
13. Sri. V. Lakshminarayana further canvasses that this Court must direct the respondents to admit the petitioner to increments that she would be entitled to in terms of the Communication dated 31.12.2008 by the Central Government to the UGC and in this regard, the learned Senior counsel refers to Clause 7 of this Communication which mentions to the grant of incentives to persons with Ph.D/M.Phil and other higher qualification.
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NC: 2024:KHC:26285 WP No. 46490 of 2012
14. Sri. Reuben Jacob on the other hand, submits that the increments for Ph.D would be available only if the petitioner had not availed stagnation increments, and he also contends that the petitioner was appointed at the first instance by the Institution without any advertisement and without the necessary recommendations by a duly constituted Selection Committee as was required under the relevant orders at the appropriate time.
15. In rejoinder, Sri. V. Lakshminaryana, submits that the petitioner was indeed appointed after an open invitation and recommendations of a validly constituted Selection Committee. Further, the learned Senior counsel submits that the petitioner could not have been denied the benefit of CAS Scheme for the past service, and as such, the benefit has already been extended to similarly placed persons, and in this regard, the learned Senior counsel relies upon Government Order dated 23.09.2009 [Annexure-G].
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16. The merits of the rival submissions are examined in the backdrop of the consideration as is seen in the impugned Endorsements [as per Annexures-H and K]. This Court must observe that neither of these Endorsements refer to the lack or otherwise of the invitations of applications or the recommendations of the Selection Committee or the petitioner receiving stagnant increment. These aspects ought to be considered in the necessary factual matrix before there could be a decision on whether the petitioner must be entitled to the benefits of past service for UGC pay scale effective from 01.07.1994 [the day she entered service with the Institution], and whether she is entitled for three increments as is contended.
17. This Court cannot in the absence of the necessary material, enter into such consideration for the first time in the present proceedings. This Court must also, given the fact that this controversy has
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NC: 2024:KHC:26285 WP No. 46490 of 2012 persisted for more than two decades, provide for expeditious decision by the concerned. Sri. Reuben Jacob, submits that the Commissioner, Department of Collegiate Education [the second respondent] will consider both the question of the petitioner's past service viz., from 01.07.1994 and 12.09.2001 being protected for UGC pay scale under CAS and the petitioner's claim for the increments in an expeditious manner. Hence, the following:
ORDER [a] The writ petition is allowed in part declaring that the petitioner will be entitled for Seniority from 12.09.2001 and UGC pay scale subject to fitment with effect from 01.03.2008 but without back wages, and subject to the second respondent's orders on the petitioner's claim for pay protection for CAS benefits for the ad hoc service rendered for the period from
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NC: 2024:KHC:26285 WP No. 46490 of 2012 01.07.1994 to 12.09.2001 and the petitioner's claim for increment.
[b] The petitioner shall file a certified copy of this order for such consideration by the second respondent on or before 12.08.2024, and the second respondent shall, after extending an opportunity to the petitioner to file all the documents and the additional representations, decide on the afore two aspects on or before 30.11.2024.
[c] It is needless to observe that even if for any reason the second respondent does not favour the petitioner's claim for past service for the purposes of CAS benefit and the claim for increment consequent to Ph.D, the second respondent must pass orders
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NC: 2024:KHC:26285 WP No. 46490 of 2012 for Seniority and UGC pay scale from 12.09.2001 and fitment with effect from 01.03.2008.
Sd/-
(B M SHYAM PRASAD) JUDGE RB