Karnataka High Court
Sri D S Veerabhadre Gowda M A vs The State Of Karnataka By Its Prl ... on 25 August, 2011
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25°DAY OF AUGUST 201i. BEFORE: THE HON BLE MR. JUSTICE ANAND) BY R. ARE DY. WRIT PETITION No. 2593 OF 200618. RES) _ BETWEEN; Sri.D.S. Veerabhadre Gowda;M.A.. S/o. Late. Shivane Gowda, -- Aged 40 years, . Part-time Lecturer. in 1 Econ omics., Rural College, Kanakapura 562417 ee Bangalore Rural Disivict. OS PETITIONER (By Shri. M. S P arth AS, arathi and: Hoh weM.P.Srikanth, Advocates) AND: ooh. The. 'State of Karnataka, - By its Principal Secretary, _ Higher. Education, 5° Bloor, . MS Buildin; gs, Bangalore - 560 O01, The Consmissioner of ae "ollegiate E ducation, a" ~ Palace Road, "Banvalore - 560 001. The Director of Collegiate Education, Government of Karnataka, Palace Road. Sheshadri Roaa, Bangalore -- S560 O01. 4. The Management of The Rural Education Society © Kanakapura -- 562 117, Bangalore Rural District. ra Sri.H.P.Appajt, M.A.. Aged 37 years, Lecturer in Economics a Rural Colle . Kanakapura - ". "562 Ly. Bangalore' Rural District. > 6. The Principal,. Rural College, Kanakapura- 562 1417, Ramanag fa | Disttic ict? : ol Res eiondi Joint Leérector of . CC 'ollegi ate Fe ducation, Bangalore Regional Office, , Gov ernment of Karnataka, No.LS, Kald asa Road, Bangalore ~ 560 O09. Pleader, for Respondent Nos.1 to 3 oo Sir aR 6 ve Shri.Raghavendra G.Gayathri, i.M.S.Purushothama Rao, Advocate High _ RESPONDENTS for Responde) ap INOS. Court Government ied Shri. P.S Rajagopal, Senior Advocate for Respondent No.5 Shri.Santhosh S. Nagarale , Advocate for Respondent No.St = This Weit Petition is filed under Article -224 91 the Constitution of India, praying to set aside the Notification of first Respondent dated 25.11.2005 vide Annexere-M in so far it-relates to the approval for absorption of respondent No.5 es fui ester cs Lecturer in Economics at Rural College, Karakapura. Bangalore | Division, shown at S1.No.34 in Appendix-3 as iHegal and invalid and the consequential order by respondent-4 under Ref.No.321/05- 06 dated 1.12.2005 vide Annexure-O absorbing the respondent No.4 as Lecturer in Econornics, Rural College, Kanakapura, as itegal and invalid and ete; This petition having been heard anc reserved on 20.7.2011 and coming on bor pronouncement of orders this day, the Court delivered the feflowing:~ > oe ORDER
The facts oF the case, as stated by the petitioner, are as oO The petitioner is an M.A. in Economics. He was appointed as a part time Lecturer in Economics by the third respondent, by "oan order dated 326.1993, The fifth respondent was also appointed similarly , as a part time lecturer in Economics as on the same "e, Le SE date. The date of birth . which is relevant for the purposes of this ease, was 1.6.1965. That of the fifth respondent was -1.6-1968. The petitioner therefore seeks to claim seniority over the. fifth Gi) of the Karnataka Government Servants (Seniority? Rules, (957 (hereinafter referred to as ' the. Seniority Rules' fer brevity) which are followed and made apphcable to the employees under the Karnataka Education Act, 1983...
3. The petitioner and: the fespondent were continued in employment in the ° 'subsequent "Years, after their initial employment, on the same terms and conditions. It transpires that the state Goverment by a Notification dated 12.2.2004 published "the Kamavatca Educational Institutions (Absorption of persons working. as" part ime lecturers in Aided Private Educational Institutions) (Special) Rules, 2003, (hereinafter referred to as | the 200% Special Rules' for brevity) in exercise of power under the a :
Karnataka Education Act, 1983, Chereinalier referred to as | the Act' for brevity) with effect from 12.2.2004.
4. At the relevant point of time there was only one Mien aided post of Lecturer in Economics under the manage me ni, WN vik th was vacant. The Department had'. bya Cc ireular da ied. 10-3 2004 - directed all degree colleges to.. send. particulars regarding absorption. [It is contended that while sub 'ting the particulars of the petitioner, the date of appomitment swas So indicated as 8.7,1993, instead ef 2 27,1993, "DY cme Management. This was sought to be cc vere al bya cofamunic ation dated 17.2.2005, The Office of the Re sional Dincotoe had sought clarification and i further particulars, are said to have been dispatched by the ». Management. --
- 3. inspite of this, it transpired that a Notification was : - issued by "the commissioner of Collegiate Education, dated i 38.11.2605, notifying the list of approved candidates tor absorption ~ which indicated the fifth respondent for being E RGSS SEN GURU SSCS SLL TERA 6 absorbed as Lecturer in Economics. The Management had promptly issued an order by which the fitth respondent.| has-been absorbed as a full time Lecturer in Economics
6. The petitioner having learnt that the date of entry into service, which was furnished to: the 'Dep ariment , has not been corrected inspite of the same. having beey-brought to its attention and which ts duly acknowledged. AS the 4 Hh respondent has been absorbed into serv ice, though if ough to have been the petitioner, the petitioner.is 5 befare this court, The learned cGunsel for the petitioner would reiterate the above sequence of events in seeking the reliefs prayed for, OT, ti 18 | conitende don behalf of Respondents | to 3 that there Is. no infirmity in the impugned notification indicating that ihe filth respondent is eligible for absorption as he had been found to be senior fo the petitioner b i ¥ virtue of his appointment being oA oO BES 2 ST GS Be SER earlier. Tt is stated that the original records pertaining to the petitioner and the fifth respondent were perused and as per the work load statement relating to the petitioner had bes found. with:
an interpolated, corrected date of birth which correc tion had. not been countersigned by any competent'. person and hence the corrected date of birth could not be taken into accoun. th terms of Rule 3 (5) of the 4 Absorption Rules - he. inter se seni iority of part time lecturers has to be serene on "the "basis of length of Service as part-time lecturers, In the instant case the filth respondent was To u nd ; fo be 8 enio . by vin ue of earlier appointment vis-a-vis the petitioner.
8. ft is also stated that as found from the record the "petitioner wus never ap pointed for the academic year 1992-93, in the fourth respondent institution. The document annexed to the W rit petition iti support of the claim is sought to be demonstrated as having been issued by a person who was not at all in office as the Secretary of the Society, as on the relevant date. This having suas eros Roca been cross checked with the actual attendance it was found as a fact that the petitioner had rendered service only during the perrod 1993-94 and 1994-95, whereas the fifth respondent had. worked:
longer, including the period 1992-93. Whe apolying the rule of absorption, inter-se seniority of such' part time lecturers. is. determined on the basis of length of service aad where the length of service is the same, seniority is determined, on the basis of age, the older being considered senior. Therefore. iv the instant case the determinaticn of seniority has been 'effected with due diligence. --
Q. Re spondent HO; 5 Rass 1 his statement of objections, has onré scord pitore dealing with the writ petition averments. By a x weet . Thi LE hm ge £ Notification 'dated 22° January 1997, the Government of persons working as part-time Lecturers in the Karnataka Kas nat aka ynade the Karnataka State Civil Services (Absorption of EEN ee SAAR SAS y Education Department Services)(Department of Collegiate Education\(Special) Rules, 1996 (hereinafter referred to "as! the 1996 Special Rules' for brevity). These 1996 Special: Rule s provided for absorption of part-time Lecturers as defined in: the Rules working in Government First Grade C lle eges mn th e State : as-. Lecturers subject to certain conditions. The 1996 Special Rules provided for absorption of part-time 'Lecturers as defined in the Rules working in Government Firs Grade ao "ollenes | in the State as Lecturers subject to eriain conditions. 1 Vie | 996 Special Rules became subject matéers of challenge and were ultimately upheld by the Supreme Court in Srate of Karnataka vs. B.Suvarna Malini, (2008) ] se £26: 'here os by a Notification dated 12.2.2004, Copy of which is produced as Annexure -R.1, the Absorption | Rules Wwe ere framed. Rule 2(c) of the Absorption Rules defines a Pastime L Lecturer Rule 4 provides for absorption of such Part-
o. thme Lecmrers with the approval of the Commissioner within the ~ sanctioned strength and against approved grant-in-aid post oF 'Lecturers. Proviso to Rule 3(1) provides that where a Part-time Os Aye eee SRE SES Rs 10 Lecturer cannot be absorbed under Sub-Rule (1) for want of vacancy he may be absorbed as and when a vacancy arises. as 'set out in the said proviso. Rule 3(2) mandates that for abso seption OF part-time Lecturers under these Rules, the College. in which: the part-time Lecturer was or is working has to be taken as one unit. Rule 4 stipulates the procedure first respondent sborpon It is contended that the answering ; sespohitent has be sen absorbed strictly in accordance with the Absorptioa Rule and the challenge raised by the petitioner te ihe absorption" of the answering respondent is untenable.
10. - Agarieved "by tine: absorption of the answering respondent, the petitioner made certain representations to the , _Goverriment et would appear that he started making representations as. soon as the proposal to absorb the services of the ans) wering's "és spondent was mooted. Pursuant to these efforts of ise. petitioner. the Government directed the Regional Joint Director, Collegiate Education to inquire into the matter and <4 ied .. ..
Li submit a report. The said Joint Director after a detailec inquiry submitted a report pointing out that the answering respondent joined the services of the Rural College, Kanakapura' for the first - time on 23.7.1992 and worked for the academic yeni 1 992-93 aa Part-time Lecturer. He has also worked for the academic years. 1993-94 and 1994-95 and fulfilled the definition of Part-time Lecturer in the Absorption Rules. ; insofar as the petitioner iS concerned, the report stated that for the first tisne the petitioner was appointed as Pavctime Lecturer in ihe academic year 1993-94 that 1s one year subsequent to the answering respondent. The report also pointed out that there have been certain manipulations inasmuch as' the date of reporting of the petitioner is corrected as 2.71993 in place of typea date 16.8.1993 and the correction and | manipelation - is ; not authenticated. The Jomt Director after detailed discussion held that whatever it be whether the petitioner an nas joined on 16.8,1993 as originally found in the records or on ° "27.1063 as corrected without authentication the fact remains tnat the answering respondent who has joined on 23.7.1992 is senior [0 3 the petitioner. After examining the report and the records, the Commissioner, Collegiate Education, by a letter dated 2.42.2005 affirmed that the proposal submitted for absorntion...oF the answering respondent is in order, that the answering. respondent Lis senior to the petitioner and that the alle gations Sof the e petit ioner to"
'8 the contrary are false. A copy of the ened datec 1242, 2005 3 produced as Anmexure-R2, Thereafter. 'ibe en entire spatter was discussed at the Governm ent: level on 28.02.2006 and after examining every one of the aspects 7 ihe 'Government came to conclude that "every. one of the claims of the petitioner is unsustainable and uiitenable - The Government came to a clear conclusion thet the answering respondent having been appointed (08 23.3 1992 Zand the petitioner having been appointed, much later, on . [993 heaves of considering age for determination of inter: se seniority: is not applicable and the age would be a relevant ae oo. Faetor only 'uhen two persons have joined service on the same day, ~ A cepy of the proceedings dated 28.02.2006 1s produced as 4 Anrexure-R3. Based on the proceedings dated 28.02.2006, an eg Se eee ea EGS endorsement or order has been issued to the petitioner. The present writ petition without challenging the said proceedings and consequential Conimunication is not maintainable ll. The answering respondent was appointed a? pertctine Lecturer by order dated 23.7.1962 2. copy OF wi pick is pies joduced as. Annexure-R4. He reported for we on. the samme da day. A copy of the duty report is produced' as Annoxure-RS. "For the academic year 1993-94, he was. appointed by an order dated 28.6,1993 and he reported fot duty Oui 2.7.4993. Por the academic year 1994-95, he was appointed by an ord er dated 117. 1994 and he reported for duty on 11.07.1994, "He continued i im service on part-time basis vnereetedly daring every academic year and a copy of the certificate dated. 2: 43, 2004 issued by the College is produced as 3 Anneéxure-RG. "The petitioner was appointed for the first time by order dated 28.6.1993 and he reported fer duty on 2.7.1993. Even the service certificate produced by him at Annexure-G would "os sho y N 'that for the first time he joined the services of the College as 2 af part-time Lecturer on 2.07.1993. This conclusively establishes that the answering respondent is senior to the petitioner and the assertions of the petitioner to the contrary are false. This is the position taking the date of joining of the petitioner as as "G2.07.1995, as Claimed by him, as against the date 16.8.1993 foun to be the correct date by the authorities. A copy al f the-s stiite "nent t of work- load for the years 1992-93, 1993-94 and j 04.8 is sroduced as Annexure-R7. When the name. of the answering respondent is found in both . the : statements : establishing the fact that the answering respondeat is workin gfrom 23.7, 1992, the name of the petitioner is not found in the statement for the year 1992-93, but his name is found at. § 7 oN for the acadermc year 1993-94, cmmuch: be slow the naif c.of the answering respondent and date of his "appa iment which Is typed as 16.8.1993 has been shown in hand writing as 92.07.1993 and ihe sald correction is not authenticated. Ju. 'Fhereforé the claim of the petitioner is untenable. S
12. The fourth respondent has also entered appearance through counsel and has filed statement of objections supporting the case of respondent no. 5, while adding that the petitioner may -- permanent employee in terms of the applicable conditions. li is. stated that respondent No.5 was 'appointed on 25.07,1992 and hence he is senior to the, petitioner and. accordingly, the State Government absorbed the fifth respondent: . it is contended that Rule 5(3) of the Government First Grade Colleges * Part-time Locinrees Absofption Rules, 1996, clearly states that the inter-se seniority of such Part-time Lecturers has to be deteimined on the basis of leneth of service. The Department Authority prepared the 55% eligibility candidates list. A copy of the. seme is: produced as Annexure-R13 and also Private Aided First Grade College Part-time lecturers Departmental Authority "prepared the 55% eligibility Candidates list under the 2003 Special Rules. The inter-se seniority of such part time lecturers is & 16 determined on basis of length of service and forwarded to the Government and recommended for absorption. a copy of .Private aS Aided College Part-time Lecturers eligibility list is produced. as -- Annexure-R.14. In the Government: First Grade. Colieges,. the Part-time Lecturers were considered as one unit in the entire States. The Part-time Lecturers of the Private Aided First Grade Colleges Lecturers, who were considered to be workrag in the college, has to be taken as one unit.
(3. In the Hight of the above, iL Is. contended that Special Rules at Annexue-B do not lay down the condition that only part time lecturers who worked duiting Academic Years 1993-1994 and I 994-1995 were alone entitled for absorption, All that the Rules . prescribe was: that part time lecturers who had been working as stich duritig the Academic Year 1993-94 and 1994-95 are entitled for absorption. The petitioner's contention to the contrary is "miscenceived and untenable. The Government has considered the oe orl si oe sont Whe?1
Sieg aro \ ee a S paul Tenet = Sri ease of all the pari time lecturers who worked prior f 3 Ses a ... « 1994-95 if they were eligible under the Rules and who were working during 1993-94 and 1994-94. Therefore, the filth respondent was absorbed into the services taking "Foto length of service was more than the petitioner and he 'was working :
as part time lecturer from 23.07. 1992. and during 1993-1994 and 1994.95 and even thereafter aivintérruptédly with out any break in service till his services were. absorbed wider the 2003 Special Rules.
14. The petitioner nas filed rejoinders to the statement of objections of the respondents: ie is contended that with reference to para ~4,. the only criteria of eligibility as per the Absorption , Rules. is, to have worked as Part-time Lecturers during the acaileric years of 1993-94 and (904-95. If there are more than one such Lecturers and there being only one vacancy, the inter-se . seniority, amongst them have to be fixed. Both having reported "s for duty on 2.7.1993 on the commencement of the first academic Ce it oe year of 1993-94, as borne out of records and the petitioner being elder in age, he alone ought to be considered as senior te the fifih respondent. The fact that one had worked as Part-time Lecturer either during earher academic years with erenk of service' or.
during academic years subsequent to 1994-95. is no critéria at all In fact, even the Commissioner did ot reflect and sighily 50, the 1992 service rendered by the Fifth respondent in his proposal dated 18.8.2005 vide Annexure e-P sent wt the Gisverninént and only the date of 2.7.1993 es dite of amy of Respondent no.S was shown, while the comect view was reflected in the earlier proposal sent on 25.9. 2004 'by the Coimiss 'ower vide Annexure-Q and it is only in the objection, statement that anew and incorrect interpretation is given -by the Department, which is untenable. » 15. 'The contention of the respondents in the Statement of Objections filed is mainly to the effect that the petitioner has aM noduced a Certificate signed by the Secretary, who, according t¢ 'the respondent was not the Secretary at the said point of time. eee In response to the same, the petitioner submits that the Certificate produced by him is the genuine and authenticated documéat which was issued to him at the time of appointment whiclr.is signed by, one Shri M.Nagaraju, who was the Treasurer at the relevant point:
of time and due to the ill-health of the then Secretary, the orders -- have been issued to the petitioner and to certain. others who were similarly appointed during the same period of time. The said fact can be verified from the respondents. and the petitioner herewith produces one such copy-issued to anotber employee, namely, one Shivarayu on 317.1993 vide Anmexure-R, which is also signed na by one Nagaraju on behalf.of thé-Secretary as the Secretary at the relevant point ef time was ugwell and the correspondence were "being sifiged by the said Nagaraju who was the Treasurer of the Society. Therefore. no doubt can be attributed to the documents produced by the petitioner in support of the contention that he was appointed earlier to respondent no.5.
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16. From the prolix pleadings and the contentions on those lines would indicate that the competent authorities have decided against the petitioner insofar as his claim to seniority on the basis Special Rules. The same reads as follows~ "(b) the mter-se seniority.of the 'persons wha heve
- = . } .
passed National Educarion Test cr Staté- Level Education Test shall be determmed according fo the length of service of the said lecturers in the part time service! aiid if the length of service Ol twa or more persons-is sanie, the older in age treated as semor.to the persot: whois younger in age."
17. According to the. management, the fifth respondent was a M.Phil, candidate who %s exempted from passing the National
- Education Test _as per the Government Order dated 9,2.2007. which applied at the relevant point of time. However, it is stated that the. pettdoner did not possess the basic qualification of a pass eg in National Education Test nor did he possess M.Phil as on July 2007and therefore, lacks the eligibility to be considered for permanent employment in the institution. It is in this light that the E & cn i...
management seeks to contend that the fifth respondent was better qualified and in a better position in the service of the instifition, This is apart from the controversy that is set at rest.by the reiterated by the fourth respondent ~ management that the"
question of considering the age for 'determination of the inter-se seniority, is not applicable inthe present-caséyas it cannot be said that the petitioner and the fifth respondent had joined the service on the same day. Therefore. Kale 7-ACL}i of the Seniority Rules would not be "applicable. Yer another limitation which the peutioner is said fo suffer from is stated by the management in its Ene proforma prescribed by the Statement of objections. --
» Governinent as regards.the particulars of the Lecturers that was to be furnished would-indicate that the incumbent Lecturer should have not less than SS% of marks in the respective subjects at the oolime of théir appointment. [t is claimed that the petitioner did not have "S5¢> marks as on the date of his appointment while the fifth tespondent did possess these minimum qualification marks. The "4 Ce 22 management candidly states that it was in order to avoid students from suffering from want of staff, that the petitioner' had "he en allowed to continue in service subject to his securi ng the equired :
qualification in course of time. It is only in April 1995 that he nad not managed to secure 55% marks in the concerned 'subject, ~ This is also an impediment for consideration of the petitioner' s case aS a regular employee of ne Cole The petitioner, however, did not think it fit. 1 meet "the conte tions put-forth by the management and therefore, sinee itis Hot a case which 1 requires to be inv estigated ae Jength, as to he allegati on that the petitioner had been ap; pointed mi the -year 1992 itself, even without of the petitions er to be-considered as a permanent employee at the rele ant point OF tit me, there is no infirmity to be found in the impugned orden. 7 § ny