Karnataka High Court
Sri.Hanumanthappa vs Sri.Ashok B Gojanoor on 12 February, 2014
Bench: N.Kumar, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 12th day of February, 2014
Present
THE HON'BLE MR.JUSTICE N.KUMAR
and
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
WA NO.30189 OF 2013 (S-PRO)
Between:
1. Sri. Hanumanthappa
S/o Kallappa Sangli,
Aged about 46 years,
R/at No.13/1A, Vinaya Colony,
Near Telephone Exchange,
Bengeri, Hubli-580 023. ...Appellant
(By Sri. Anant P Savandi, Advocate)
And :
1. Sri. Ashok B Gojanoor,
S/o B Gojanoor,
Aged about 47 years,
Occ: Teacher, R/o New Secondary School,
Byahatti, Taluq:Hubli, Dist:Dharwad.
2. The president,
SPMR New Secondary School,
Byahatti, Taluq: Hubli, Dist:Dharwad.
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3. The Assistant Director,
Department of Public Instructions,
Dharwad, Dist: Dharwad.
4. The commissioner,
Department of Public Instructions,
Dharwad, Dist: Dharwad.
.....Respondents
(By Sri. A.R. Pati for R1, Advocate,
Sri. K S Patil, HCGP, for R3 and R4,
R2-Served. Govt. Advocate)
This appeal is filed under Section 4 of the
Karnataka High Court Act, 1961, praying to set aside the
order of the learned single judge passed in WP
No.1024/2007(S-PRO) dated 09.01.2013.
This appeal coming on for Hearing this day,
N.Kumar, J, delivered the following:
JUDGMENT
This appeal is filed challenging the order passed by the learned single Judge who dismissed the writ petition filed by the petitioner where he had challenged the appointment of the first respondent as the Head Master of the School.
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2. The petitioner and the first respondent were appointed as teachers on 08.09.1997 by the second respondent. However, the authorities by an order dated 07.06.1988 approved the appointment of the petitioner from 18.09.1997 and the first respondent on 22.11.1997. The second respondent appointed the first respondent as Head Master, as he was born earlier to the petitioner. Challenging the said order of the appointment of the first respondent as Head Master, the petitioner preferred the writ petition before this Court. The argument was though they were appointed on the same day, the appointment of the petitioner was approved on 08.09.1997 whereas the appointment of the first respondent was approved on 22.11.1997 and it is the date of approval of the appointment is to be taken into consideration in deciding the seniority. Therefore, the petitioner wanted the appointment of the first respondent to be set-aside. However, the learned single judge was of view that both were appointed on the same day and as the first :4: respondent was born earlier to the petitioner, he would be senior to the petitioner. Therefore, his appointment as the Head Master on the basis of the seniority is correct and therefore, he dismissed the writ petition.
3. Aggrieved by the said order, the present appeal is filed.
4. Learned counsel for the appellant assailing the impugned order, relying on the Rule 8 of the Karnataka Educational Institutions (Recruitment and terms and conditions of service of employees in private aided primary and secondary educational institutions) Rules, 1999, contends that an obligation is cast on the Managing Committee to cause to be prepared seniority list and Rule 11(2) categorically provides the competent authority shall cause a list of all eligible and qualified retrenched employees to be maintained at the State level and the list of teachers shall be prepared subject-wise and cadre-wise, the list shall be prepared on the basis of :5: the seniority, taking the date of approval of appointment with aid as the basis and further relying on Annexure-VI to the said Rule it is held if the management is running more than one School common seniority based on the date of approval of appointment of the teacher with aid shall be prepared and notified. If the date of approval of appointment of more than one teacher happens to be the same day, the seniority shall be fixed on the basis of the date of birth and the person older in age shall become senior. Therefore, he contends that list showing the date of approval and not the date of appointment should have been taken into consideration. Therefore, he submits that the impugned order requires to be set-aside.
5. Per contra, the learned counsel for the respondent submits that where the management is running only one institution, it is the date of appointment which is the basis for preparation of seniority list. The Management appointed the first respondent, which order :6: of the appointment is rightly upheld by the learned single judge, hence, no case for interference is made out.
6. The parties are governed by the aforesaid Rule. Rule 8(b) reads as under:
8. Seniority: (b) In case the Managing Committee is running more than one Institution, the Managing Committee shall cause to prepare a common seniority list for all the institution under its control.
Reading of the aforesaid provision makes it clear that it provides for preparation of seniority list for each category of posts in the institution separately. It also provides for preparation of seniority list when the management committee is running more than one institution. Rule 10 deals with retrenchment by the governing council and Rule 11 deals with retrenchment by the competent authority. Before a competent authority retrenching a teacher, Sub Rule 2 provides for preparation of list and the said list is to be prepared on the basis of seniority based on the approval, it is :7: understandable. If the authority does not approve the employment, they have no power to retrench, therefore, if the retrenchment is done by the competent authority there should be seniority list and the said seniority list based on the date of approval as the basis.
7. Similarly, Annexure-VI deals with procedure for filling up of Head Master/Head Mistress Private Aided High Schools. It categorically states that the promotion to the post of Head Master/Head Mistress shall be made on the basis of seniority of a teacher, seniority being determined by counting the total number of years of continuous service from the date of entry into the cadre of Secondary School Assistant Grade-I or II as the case may be and the following Roaster Rules, if they are applicable as per the order issued by the Government if the matter of reservation from time to time. Therefore, it is very clear that seniority is to be determined by counting the total number of years of continuous service :8: from the date of entry into the cadre and it is not to be the date of approval. However, the Clause-IV deals with situation where if the management is running more than one school common seniority based on the date of approval of appointment of the teacher with aid shall be prepared and notified, it is understandable because the management may be running more than one institution and for the purpose of appointment of Head Master service of these teachers in this Institution has to be taken into consideration and their date of approval by the Government assumes importance. The said rule has no application to a case where the management is running only one institution. If only one institution is run then seniority has to be counted on the basis of the total number of years of continuous service from the date of entry into the cadre. Therefore, there is no ambiguity, the law is very clear. In the instant case, the management is running only one institution. Both the petitioner and the first respondent entered the service on the same day. The :9: first respondent is born earlier to the petitioner. For the purpose of seniority and the appointment of Head Master, it is from the date of entry into service, seniority is to count. Date of approval is of no consequence.
8. Unfortunately, in the instant case, though both of them entered the service on the same day, while granting approval by a common order, approval is given to the petitioner on 08.09.1997 and to the first respondent on 22.11.1997. On the face of it, it is arbitrary. Nonetheless, it makes no difference as far as the first respondent is concerned, because the management runs only one institution and for the appointment of Head Master seniority is to be counted from the date of entry. When that is done, the first respondent having been born earlier to the petitioner he is senior. Recognizing the seniority he has been appointed as Head Master. Therefore, the learned single Judge committed no error in dismissing the petition. In : 10 : that view of the matter, we also do not see any merit in the appeal.
Accordingly, the appeal is dismissed.
SD/-
JUDGE SD/-
JUDGE JTR