Karnataka High Court
Sri. Phalahara Shivayogeshwara vs The State Of Karnataka, on 30 May, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
Writ Petition No.110510 of 2017 (S-RES)
BETWEEN
SRI. PHALAHARA SHIVAYOGESHWARA
SHIKSHANA SAMITHI,
MANIHAL SUREBAN,
TQ: RAMDURGA, DIST: BELAGAVI.
REP. BY ITS PRESIDENT
SHRI. SMS SHIVAMURTISWAMI
GURUMRUTUNJAYA SWAMI
FALHARESHWARMATH, AGE: 44 YEARS.
... PETITIONER
(By Sri. V.M. SHEELVANT, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
REP BY ITS SECRETARY,
PU DEPARTMENT,
EDUCATION DEPARTMENT,
M.S. BUILDING, BENGALURU-01.
2. THE DIRECTOR,
DEPT OF PRE UNIVERSITY EDUCATION,
18TH CROSS, MALLESHWARAM,
BENGALURU-12.
3. THE DEPUTY DIRECTOR,
DEPT OF PRE-UNIVERSITY EDUCATION,
BELAGAVI, DIST: BELAGAVI.
4. SRI. B. N. BAGALI,
LECTURER (UNDER SUSPENSION),
SRI PHALAHARA SHIVAYOGESHWARA
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COMPOSITE PRE-UNIVERSITY COLLEGE,
SUREBAN, RAMDURG TALUK,
BELAGAVI DISTRICT.
5. SHRI. BASAVARAJ HORATTI,
MLC/THEN EDUCATION MINISTER,
R/O: "ADAVISWARA SADANA",
VEMANA BEEDI, HUBBALLI,
DHARWAD DISTRICT.
... RESPONDENTS
(By Sri. A.R. RODRIGUES, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NOS.1 TO 3.
SRI. ANANT P. SAVADI, ADVOCATE FOR RESPONDENT
NO.4.
SRI. B.V. SOMAPUR, ADVOCATE FOR RESPONDENT NO.5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 23.10.2017 IN
NO.ED 385 SHH 2009/BENGALURU PASSED BY
RESPONDENT NO.1 VIDE ANNEXURE-B. DIRECT THE
RESPONDENTS NOT TO INTERFERE WITH THE DAY TO DAY
AFFAIRS OF THE MANAGEMENT INCLUDING THE
DISCIPLINARY ACTION INITIATED AGAINST RESPONDENT
NO.4.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is listed for preliminary hearing in B group. The State has filed I.A. 1 of 2018 seeking vacating of interim order of stay granted by this Court on 16.11.2017. While considering the said application, with 3 the consent of the learned counsel on both sides, the matter is heard finally.
2. Petitioner is stated to be an educational institution registered under the provisions of the Bombay Public Trust Act, 1950, as it applied in the State of Karnataka. That it has been running several schools and colleges for providing education to rural students and to the poor and needy children. According to the petitioner, it is running three High Schools, two Pre-University colleges and four Primary schools and several other training institutes and colleges. Petitioner is stated to be running free boarding and Hostels at Manihal, Sureban and Ramdurg for poor rural students.
3. That respondent No.4 was appointed as a lecturer in Geography in the year 1983 in the petitioner college which is a Pre-University College. When the post of Principal fell vacant, respondent No.4 was appointed as a Principal in the year 1992. It appears that while discharging his duties as a Principal of the college, he had 4 misappropriated certain funds of the college and was acting against the interest of the Management. On coming to know about these facts, petitioner issued show cause notice and after hearing respondent No.4, imposed a minor punishment by withholding one increment permanently as per order dated 25.01.2002. Aggrieved by the said order dated 25.01.2002, respondent No.4 approached respondent No.3-DDPU, Belagavi, requesting the Management to release the increment as per his letter dated 13.02.2002. The petitioner-Management requested respondent No.4 to furnish the service register by issuing notices to him. But according to petitioner, respondent No.4 did not furnish the service register.
4. It is the further case of petitioner that respondent No.4 was involved in political activities and one of his close relatives is respondent No.5, the then Minister for Education and subsequently MLC in Teacher' Constituency. That respondent Nos.4 and 5 have acted against the interest of the petitioner-Management. That 5 respondent No.4, on committing acts of misappropriation, has taken shelter under respondent No.5, who has left no leaf unturned to sustain any illegality of respondent No.4 by using his political power and has interfered with the affairs of the Management. That three part time lecturers in one of the colleges run by petitioner-Management were discontinued from service on account of their misconduct. Respondent No.5 intervened and sought for their reappointment. When petitioner did not oblige, respondent No.5 informed the respondent authorities to appoint a Special Officer to the Institution. A Special Officer was appointed by order dated 23.09.2004. Aggrieved by the same, petitioner approached this Court by filing Writ Petition No.40643 of 2004 (Annexure-A) in which an interim order of stay was granted on 05.10.2004. The Special Officer, in the meanwhile, at the instance of respondent No.4, issued letter dated 01.10.2004 directing the petitioner-Management to sanction the withheld increment. But the same was not implemented due to the interim order of stay.
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5. According to petitioner, respondent No.4 continued his activities of misfeasance and misappropriation of funds of the Management and acted against the interest of the Management. The Management sought to take disciplinary action against respondent No.4. Eleven serious charges were issued against him and in accordance with due process of law, petitioner sought permission to suspend respondent No.4 so as to hold an inquiry against him. But respondent No.5 influenced the Commissioner, Pre-University, Bengaluru, not to suspend respondent No.4 nor to hold an inquiry. That petitioner preferred Appeal No.7 of 2005 before respondent No.1. The said appeal was allowed by order dated 18.02.2005 and permission was granted to suspend respondent No.4 (Annexure-B). Being aggrieved by order dated 18.02.2005, respondent No.4 preferred writ Petition No.10222 of 2005 before this Court which quashed order dated 18.02.2005 and disposed the writ petition by its order dated 26.05.2005. Aggrieved by the said order of learned Single Judge, petitioner Management filed Writ 7 Appeal No.2794 of 2005 before Division Bench of this Court. This Court set aside the order of learned Single Judge and confirmed the order of respondent No.1 dated 18.02.2005 by its judgment dated 26.08.2005 (Annexure- C).
6. Thereafter, petitioner concluded the inquiry against respondent No.4 and passed an order dated 31.05.2006 demoting respondent No.4 from the post of Principal to the post of lecturer and directed him to report for duty as a lecturer (Annexure-D). Respondent No.4 assailed the said order before respondent No.1 herein instead of filing an appeal under Section 94 of the Karnataka Education Act, 1983, (hereinafter referred to as 'the Act' for the sake of brevity). Respondent No.1, under pressure from respondent No.5, quashed the inquiry report dated 24.05.2006 as well as the order imposing penalty dated 31.05.2006 and directed the petitioner- Management to reinstate respondent No.4 to the post of Principal with immediate effect by making certain 8 observations against Management(Annexure-E). Being aggrieved by the said order, which according to petitioner was at the instance of respondent No.5, petitioner challenged it in Writ Petition No.11994 of 2006 before this Court wherein respondent No.5 herein was also arrayed as a respondent. In that writ petition, respondent No.5 has produced material by way of letters and correspondence, which according to petitioner, clearly establishes that respondent No.5 is prejudiced against petitioner- Management and that the action against petitioner- Management has been at his instance. That respondent No.5 has also made statements in public to the effect that petitioner Institution has not been functioning properly and that the impugned order passed by respondent No.1 herein is at the instance of respondent No.5.
7. Petitioner has further averred that in Writ Petition No.11994 of 2006 referred to above which was filed as against the order dated 21.08.2006(Annexure-E) was partly allowed and petitioner-Management preferred 9 W.A. No.914 of 2008. The said writ appeal was allowed reserving liberty to respondent No.4 herein to approach the Educational Appellate Tribunal(EAT) so as to challenge the order reducing his rank from the post of Principal to the post of Lecturer, if so advised vide Annexure-H.
8. That in terms of the liberty reserved by the Division Bench of this Court, respondent No.4 approached EAT in Appeal No.9 of 2009 challenging the penalty of reduction in his rank by order dated 31.05.2006 issued by petitioner. EAT held that the inquiry was held in a fair and proper manner and thereafter dismissed the appeal by its judgment dated 17.08.2017 vide Annexure-J. It is stated at the Bar that as against the said order, Writ Petition No.109131 of 2017 has been preferred before this Court and the same is pending at the stage of removal of office objections.
9. Petitioner has further averred that during the pendency of the proceedings before EAT, Belagavi, respondent No.4 filed PUAP Nos.8 of 2010 and 12 of 2012 10 before respondent No.2 seeking computation and payment of correct salary of Rs.21,725/- as on 25.07.2009. He also sought annual increments for the year 2010-2012 along with revised pay scales. Petitioner herein filed a detailed statement of objections in the said appeals. Respondent No.2 after hearing both sides, directed that petitioner- Management may fix the salary of respondent No.4 allowing annual increments as per Rules in the appropriate pay-scale of a lecturer in Pre-University College from the date of reporting to his duty till the date of its order dated 10.11.2016, vide Annexure-K, having regard to the outcome of the proceedings pertaining to respondent No.4, being demoted.
10. Being aggrieved by that order, petitioner preferred ED.No.27/DGW/2017. That during pendency of that proceeding, Management has instituted disciplinary action against respondent No.4 for unauthorized absence and it has issued an order of suspension dated 29.07.2017, charge memo to respondent No.4 on 11 07.07.2017 along with a memo before respondent No.1 on 23.08.2017.
11. It is further averred that EAT No.9 of 2009 has been dismissed by the Tribunal confirming the order of demotion of respondent No.4. According to petitioner, in the above background, respondent No.4 with the influence of respondent No.5 instigated the Joint Director of Pre- University Education, Bengaluru, to issue show cause notice dated 01.04.2017 vide Annexure-N calling upon the petitioner-Management to show cause as to why its recognition should not be withdrawn under Section 39(1)(a) of the Act stating that petitioner has not obeyed the order dated 10.11.2016 passed by respondent No.2. The said show cause notice has been replied to by petitioner. That being aggrieved by the show cause notice, the employees of the petitioner-College approached this Court in Writ Petition Nos.21957-65 of 2017. That the said writ petitions have been disposed off by considering the 12 submission made on behalf of the State Government by order dated 03.08.2017 (Annexure-P).
12. According to petitioner, on account of vengeance against the petitioner-Institution, one more show cause notice vide Annexure-Q under Section 67(1) of the Act was issued to the petitioner-Management on 03.10.2017 as to why an administrator should not be appointed to the Institution. Petitioner replied to the show cause notice on 09.10.2017 stating that on account of proceedings instituted by respondent No.4 as well as the petitioner-Management concerning respondent No.4, there has been no finality in the matter and hence Management was not in a position to grant increment or release the pensionary benefits to respondent No.4, who, by then, retired on 30.07.2017. Despite the reply given by the petitioner-Management, the impugned order dated 23.10.2017 has been issued by respondent No.1 once again appointing a Special Officer under Section 67 of the Act and the Special Officer has been appointed without 13 serving a copy of the order on the petitioner. Being aggrieved by the impugned order dated 23.10.2017 vide Annexure-V, the petitioner has preferred this writ petition.
13. Statement of objections have been filed by respondent No.4 as well as by respondent authorities on behalf of the State and by respondent No.5. On behalf of the State, an application for vacating the interim order granted by order dated 23.10.2017 has been filed. In the circumstances, writ petition has been heard finally with the consent of learned counsel for the respective parties.
14. Learned counsel for the petitioner while narrating various proceedings that have been instituted by petitioner against respondent No.4 and vice versa contended that the reason as to why increment in salary of respondent No.4 was withheld was on account of order passed on 25.01.2002 which was by way of a penalty imposed on respondent No.4 on account of certain misconduct which came to the knowledge of Management and after issuing show cause notice to him and hearing 14 respondent No.4, the said penalty was imposed. That the grievance of respondent No.4 stems from the fact that increment has not been paid to him with effect from 25.01.2002. But on perusal of the impugned order it becomes clear that the respondent-authorities have been instigated by respondent No.5 at the instance of respondent No.4 to pass the impugned order. Learned counsel contended that a detailed narration of the proceedings and the consideration of the same would clearly indicate that the petitioner-Institution has suffered on account of the activities of respondent No.4 as well as respondent No.5 and the impugned order is one such instance. He submitted all though respondent No.4 has approached various authorities in respect of his increment being withheld as well as regarding punishment of reduction in rank being issued by petitioner-Management against him, he has not been successful before any authority or forum. He drew my attention to Annexures-K and M orders and contended that the said orders which are apparently in favour of respondent No.4 could be 15 implemented only if respondent No.4 is successful before this Court in Writ Petition No.109131 of 2017. That in the event, respondent No.4 is able to establish that the action initiated against him are unjustified or not in accordance with law then he would be entitled to the monetary benefits as per Annexures-K and M orders. But there being no concrete order in favour of respondent No.4 or against the petitioner herein, the State could not have found any fault with petitioner for the purpose of invoking Section 67 of the Act.
15. Learned counsel further submitted that Section 67 of the Act may be invoked by the State only in public interest or in order to secure a proper Management of the educational institution and in the instant case, none of those circumstances exist. He drew my attention to the fact that respondent Nos.4 and 5 have been deliberately arrayed as parties to the writ petition having regard to their role in issuance of the impugned order. He submitted that, a reading of the impugned order would clearly 16 indicate that it is at the instance of respondent Nos.4 and 5 that the said order has been passed and if the acts pertaining to respondent No.4 is considered, there is no reason to invoke Section 67 of the Act by the respondent- authorities. He submitted that the impugned order issued by the State is not in accordance with law. The same may be quashed and the writ petition may be allowed.
16. Per contra, learned Additional Government Advocate appearing for respondent Nos.1 to 3 with reference to his statement of objections and the application filed seeking vacating of interim stay granted by this Court, supported the impugned order and contended that the petitioner has been continuously acting against respondent No.4 by denying him or withholding from him his annual increments as well as passing the order of demotion against him. That the basis for passing the impugned order under Section 67 of the Act is on account of the illegal actions of the petitioner-Management and that the said order is justified. He submitted that 17 there is no merit in the writ petition and therefore, the interim order of stay may be vacated and the writ petition may be dismissed.
17. Learned counsel for respondent No.4 at the outset contended that he has been a victim at the hands of the petitioner Management. That the Management has denied monetary benefits to respondent No.4 and has imposed punishment against him for certain alleged acts which have not been proved at all. He further submitted that Annexures-K and M orders are in favour of respondent No.4 and the petitioner -Management instead of complying with those orders has procrastinated the matter and therefore, the respondents-authorities were justified in issuing the impugned order dated 23.10.2017 vide Annexure-V and that the order of stay may be vacated and the writ petition may be dismissed. He further submitted that respondent No.4 has a good case on merits and the petitioner for not having complied with the orders at Annexures-K and M, the respondent authorities have 18 rightly invoked Section 67 of the Act and that there is no merit in the writ petition.
18. Learned counsel for respondent No.5 submitted that respondent No.5 has been unnecessarily dragged into the litigation between an employer and employee and the State. He has nothing to do with the series of litigation and disputes between the petitioner-Management and respondent No.4. That the writ Petition may be dismissed as against respondent No.5
19. Having heard the learned counsel for the respective parties, I find that the dispute in this writ petition is in a very narrow compass.
20. The point for consideration is as to whether the respondent-authorities were justified in issuing the order dated 23.10.2017 under Section 67(1) of the Act. Section 67(1) of the Act reads as under:
" 67. Taking over of management of educational institutions in public interest.-19
(1) Where the State Government is of opinion that the management of any educational institution should either in the public interest or in order to secure the proper management of the said educational institution be taken over, it may, after giving one month's notice to the person or body of persons in-charge of the management of such educational institution to make any representation, direct by notification, that the management of the said educational institution shall with effect on and from the date specified therein vest in the State Government for a period of one year.
Provided that no private educational institution under the management of a Religious Institution, Endowment or a Wakf shall be taken over without the prior consent of such management.
Provided further that if the State Government is of the opinion that in order to secure the proper management of the educational institution, it is expedient that such management should continue to vest in the State Government after the expiry of the said period of one year, it may issue direction for the continuance of such management for a further period not exceeding one year as it may think fit, so however, the total period for which 20 such management shall continue to vest in the State Government shall not, in any case, exceed two years.
21. A reading of Section 67(1) of the Act clearly indicate that if the State Government is of the opinion that the Management of any educational institution has to vests in the State Government for a period one year, it could so order under two circumstances only, first that it should be in the public interest or the second that in order to secure the proper management of the said educational institution. It is only under the aforesaid two circumstances that the State Government could pass an order after issuing notices to the person or body of persons in-charge of the Management of such educational institution to make any representation in that regard. Thus after notifying that the Management of the said educational institution shall with effect on and from the date specified therein vest in the State Government initially for a period of one year and subsequently would continue to vest for a period of one year and totally for a period not exceeding two years. 21
22. Learned counsel for the petitioner has contended that the impugned order is neither in public interest nor it is in order to secure the proper Management of the said educational institution. He submitted that the dispute between respondent No.4 and the petitioner is the whole and sole basis or the reason for issuance of the impugned order. He has drawn my attention to various orders passed by different authorities as well as by the Management against respondent No.4 in the matter of discipline as well as punishment imposed by the Management and the monetary benefits that have been sought by respondent No.4. Therefore, it has been contended that if the dispute between respondent No.4 and the Management which have not attained finality is eschewed, then there is no basis at all for issuance of the impugned order.
23. Per contra, learned counsel for the State as well as learned counsel for respondent No.4 have submitted that it is precisely because of victimization of 22 respondent No.4, that the impugned order has been passed as the petitioner-Management has illegally withheld monetary benefits which respondent No.4 is entitled to and therefore the impugned order stands justified.
24. Before answering as to whether respondents- authorities were justified in issuing the impugned order dated 23.10.2017 invoking Section 67(1) of the Act by the petitioner Management, it would be useful to refer to various orders which have been referred to by respondent No.1 in the impugned order and the facts and circumstances surrounding the said orders referred to in the impugned order.
25. At the outset, it is observed that the petitioner- College instituted proceedings against the respondent No.4 and imposed penalty of withholding one increment as per order dated 25.01.2002. Pursuant to the said order, the increment was withheld by the college. Respondent No.4 approached the DDPU, Belgaum, by his letter dated 13.02.2002 seeking a direction against the Management to 23 release the increment. But, according to the petitioner - Management, the service register was not furnished by respondent No.4. Thereafter, by order dated 23.09.2004, Special Officer was appointed to the College. Aggrieved by that order, the Management filed W.P. No.40643/2004 before this Court which granted an interim order on 05.10.2004.
26. When the matter stood thus, taking note of certain acts of misfeasance and mis-appropriation committed by respondent No.4, proceedings were once again instituted against respondent No.4. In that regard an enquiry was to be held against him and pending enquiry an order of suspension was issued against the petitioner on 06.01.2005. Petitioner sought approval of the said order from the respondents-authorities. The said approval was rejected by order dated 06.01.2005. Hence, Appeal No.7/2005 was filed before respondent No.1. The said appeal was allowed by order dated 18.02.2005 vide Annexure-B and order dated 06.01.2005 was set aside and 24 permission was granted to the petitioner to suspend respondent No.4 pending enquiry into the charges framed against him vide notice dated 29.10.2004. Aggrieved by order dated 18.02.2005 passed in Appeal No.7/2005, respondent No.4 preferred W.P. No.10222/2005 before this Court which quashed order dated 18.02.2005 and disposed of the writ petition by order dated 26.05.2005. Aggrieved by this order, the petitioner-Management filed W.A. No.2794/2005 before the Division Bench of this Court. By judgment dated 26.08.2005 the writ appeal was allowed vide Annexure-C and the order of the learned Single Judge was set aside and the writ petition filed by respondent No.4 was dismissed. Thereafter, petitioner- Management concluded the enquiry and passed order dated 31.05.2006 reducing the rank of respondent No.4 from the post of Principal to that of Lecturer vide order at Annexure-D. The said order was challenged by respondent No.4 before respondent No.1 in Appeal No.26/2006. The said appeal was allowed and the order of penalty dated 31.05.2006 was declared to be null and void. Being 25 aggrieved by the said order dated 21.08.2006 (Annexure- E), writ Petition No.11994 of 2006 was filed by the management before this Court. The said writ petition was partly allowed by the learned Single Judge of this Court against which Writ Appeal No.914 of 2008 was filed before the Division Bench of this Court. By order dated 03.07.2009 (Annexure-H), this Court while allowing the writ appeal observed that it was open to the respondent No.4 herein to avail such remedies as are available to him in law with regard to the penalty imposed on him by the Management. Further the Division Bench also observed that it was open to the State Government and the competent authorities to take such action as is warranted in law in respect of any default on the part of the Management in terms of the provisions of the Karnataka Education Act. Thereafter, respondent No.4 herein preferred EAT Appeal 9 of 2009 before IX Additional District and Sessions Judge and Education Appellate Tribunal, Belagavi, challenging the penalty imposed on him by reducing his rank from that of Principal to that of 26 Lecturer. The said appeal was dismissed by order dated 17.08.2017. At this stage itself, it may be mentioned that respondent No.4 has preferred Writ Petition No.109131 of 2017 before this Court. Learned counsel for respondent No.4 submits that the writ petition is at the stage of removal of office objections and has not yet been posted for preliminary hearing.
27. Be that as it may, in the meanwhile, respondent No.4 filed PUAP No.8 of 2010 and PUAP No.12 of 2012 before respondent No.2 seeking recomputation of his correct salary and annual increments along with revised pay scales. The said appeals were heard by the Director, Department of the Pre-university Education, Bengaluru-respondent No.2 herein and by order dated 10.11.2016, the appeals were disposed of in the following manner:
"The release of withheld increments in the principal cadre, penalty of demotion in rank from the post of principal to the post of lecturer issue is pending before the E.A.T. in appeal No.9 of 2009.27
Subject to the final judgment of E.A.T. an appeal No.09/2009, the respondents are directed to fix the salary of the appellant allowing the annual increments as per rules in the appropriate pay scales of the lecturer of the Pre-University Colleges from the date of report for duty by the appellant in the post of lecturer till date as per rules."
A reading of the above would make it apparent that the fixation of salary of respondent No.4 as well as allowing annual increments would be subject to the final judgment in EAT No.9 of 2009. The said order at Annexure-K is dated 10.11.2016 and the EAT No.9 of 2009 was subsequently dismissed on 17.08.2017 and as already noted, the said judgment is in challenge before this Court. Therefore, there has been no finality with regard to the penalty imposed by the Management on respondent No.4. Further, being aggrieved by order dated 10.11.2016 vide Annexure-K, petitioner filed Revision Petition No.2 of 2017 before respondent No.1. During the pendency of the said revision petition, the Management has initiated disciplinary action against respondent No.4 for unauthorized absence 28 and has issued an order of suspension dated 29.07.2017, a charge memo dated 07.07.2017 along with a memo dated 23.08.2017. The same are produced vide Annexures-L1, L2 and L respectively. The first respondent dismissed the revision petition by order dated 16.09.2017, a copy of which is at Annexure-M. The said order has not been challenged by the Management.
28. When the matter stood thus, the Joint Director of Pre-University Education, Bengaluru, issued show cause notice dated 01.04.2017 to the petitioner as to why action should not be initiated under Section 39(1)(a) of the Act. Pursuant to the show cause notice, the salary of the staff of the Management institution was also withheld. The said show cause notice was challenged before this Court by some of the employees in Writ Petition Nos.21957-21965 of 2017. The learned Single Judge of this Court by order dated 03.08.2017 allowed the writ petitions in part and directed respondent Nos.2 to 4 therein to consider the representation of the Management and the representation 29 of the petitioners and to pass appropriate orders thereon vide Annexure-P. Thereafter, respondent No.1 issued show cause notice dated 03.10.2017 vide Annexure-Q as to why action should not be initiated under Section 67(1) of the Act. The Management issued its reply dated 09.10.2017 vide Annexure-R bringing to the notice of respondent No.1 that respondent No.4 being aggrieved by order passed by learned District Judge, Education Appellate Tribunal, has preferred Writ Petition No.109131 of 2017 and that further action would be taken after disposal of the said writ petition. That the disciplinary proceedings instituted against respondent No.4 and the proceedings instituted by respondent No.4 against the Management and vice versa have also been brought to the notice of the respondent No.1. In the circumstances, petitioner stated that action under Section 67(1) of the Act may not be pursued. Thereafter, respondent No.1 has issued the impugned order dated 23.10.2017 vide Annexure-V. 30
29. The detailed narration of the proceedings instituted by the petitioner against respondent No.4 and vice versa have been the basis for issuance of the order dated 23.10.2017 under Section 67(1) of the Act. On a reading of the above said facts, it becomes clear that respondent No.4 has not yet been granted any concrete orders in his favour in the matter of grant of increments, revision of pay scales or with regard to any other conditions of service. Even the order at Annexure-K passed by the Director, Pre-University Education, is subject to the result of the proceedings instituted by respondent No.4 by assailing the order of penalty of reduction of rank imposed on him. Therefore, the proceedings instituted on respondent No.4, in the matter of punishment being imposed on him by the management, has not attained finality. In fact, even according to learned counsel for respondent No.4, Writ Petition No.109131 of 2017 filed by him before this Court assailing the order of the Education Appellate Tribunal is at the stage of removal of office objections.
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30. In light of the aforesaid narration of facts and reference to orders, the question that arises is as to whether the respondent was justified in issuing the impugned order dated 23.10.2017 invoking Section 67 of the Act against the petitioner.
31. The answer lies in the aforesaid discussion itself which makes it apparent that respondent No.4 has not been granted any positive or favourable order in any of the proceedings that he has instituted against the petitioner-Management. Ultimately, the matter would have to be resolved in Writ Petition No.109131 of 2017 filed by him and the subsequent proceedings that may taken place thereto. In fact, that is exactly what respondent No.2 has stated in her order which is at Annexure-K. The service as well as monetary benefits to which respondent is entitled to, is subject to the result of the proceedings which respondent No.4 has instituted challenging the imposition of penalty of reduction of rank on him. In the light of the said fluidity in the service 32 condition of respondent No.4, who is since superannuated on 30th July 2017 and without taking into consideration that aspect of the matter, I find that the first respondent was not right in invoking Section 67(1) of the Act and passing the impugned order against the petitioner herein. The same is nothing but a instance of colorable exercise of power and also arbitrary exercise of power and hence is vitiated. It was also unwarranted.
32. In the circumstances, Writ Petition is allowed. The order dated 23.10.2017 Annexure-V is quashed. However, it is clarified that once respondent No.4 is entitled to the benefits that he is seeking whether in Writ Petition No.109131 of 2017 or in any other proceedings and is successful in seeking the said benefits, the same shall be payable to him by the petitioner-Management or by the State, as the case may be, subject to any further orders that may be made by either this Court or any other forum.
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In view of the writ petition being allowed, I.A.1 of 2018 stand disposed.
Sd/-
JUDGE Kmv