Karnataka High Court
The Principal Secretary To Government vs Sharan on 11 September, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WA No. 200134 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
WRIT APPEAL NO.200134/2024 (S-RES)
BETWEEN:
1. THE PRINCIPAL SECRETARY TO GOVERNMENT
DEPARTMENT OF HIGHER EDUCATION,
M.S. BUILDING,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU - 560 009.
2. DIRECTOR OF TECHNICAL EDUCATION
TANTRIK SHIKSHANA BHAVAN,
PALACE ROAD,
BENGALURU - 560 041.
Digitally signed
by SHILPA R 3. THE PRINCIPAL ACCOUNTANT GENERAL(A AND E)
TENIHALLI
Location: HIGH KARNATAKA PARK HOUSE ROAD,
COURT OF BENGALURU - 560 001.
KARNATAKA
...APPELLANTS
(BY SRI Y.H. VIJAYKUMAR, AAG, A/W
SRI VEERANAGOUDA MALIPATIL, HCGP)
AND:
1. SHARAN
S/O CHANDRASHEKHAR PADASHETTY,
AGE ABOUT 61 YEARS,
OCC: ASSOCIATE PROCESSOR,
WORKSHOP SUPERINTENDENT IN
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WA No. 200134 of 2024
THE DEPARTMENT OF MECHANICAL ENGINEERING,
PDA ENGINEER COLLEGE,
AIWAN E-SHAHI AREA,
KALABURAGI - 585 102.
2. THE HEKS PDA ENGINEER COLLEGE
(AUTONOMOUS BODY OF
GOVERNMENT OF KARNATAKA)
AIWAN-E-SHAHI AREA,
KALABURAGI - 585 102.
THROUGH ITS PRINCIPAL.
3. THE HYDRABAD KARNATAKA
EDUCATION SOCIETY
THROUGH ITS PRESIDENT,
PDA ENGINEERING COLLEGE CAMPUS,
AIWAN-E-SHAHI AREA,
KALABURAGI - 585 102.
4. THE REGIONAL COMMISSIONER
KALBURAGI - 585 102.
5. THE CHAIRMAN
GOVERNING BODY
PDA ENGINEERING COLLEGE CAMPUS,
AIWAN-E-SHAHI AREA,
KALABURAGI- 585 102.
...RESPONDENTS
(BY SRI K. DIWAKAR, SR. ADVOCATE, FOR
SRI PREETAM DEULGAONKAR, ADV., FOR C/R1;
SRI AMARESH S. ROJA, ADV. FOR R2, R3 & R5;
R4 - NOTICE DISPENSED WITH)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE
THE ORDER OF THE SINGLE JUDGE DATED 11.08.2023 PASSED
IN WRIT PETITION NO.204935/2018(S-RES) AND
CONSEQUENTLY, DISMISS THE WRIT PETITION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN A S UNDER:
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NC: 2024:KHC-K:6862-DB
WA No. 200134 of 2024
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV) The present writ appeal is filed by the Government calling in question the correctness of the order passed in W.P. No.204935/2018, whereby, the petition filed by Sri Sharan who was appointed as a Lecturer in the 4th respondent - College and subsequently discharged, came to be questioned. The learned Single Judge has allowed the writ petition while setting aside the order at Annexure- A, which is the order passed by the 4th respondent withdrawing the order of appointment of Sri Sharan Chandrashekhar Padashetty with further direction to recover amount from the said employee in terms of the audit observation made by the Auditor. Challenge of the writ petition was not only as regards order of 05.11.2018 -4- NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 wherein it was ordered withdrawing the order of appointment as also order of approval of appointment passed by the Director, Technical Education, dated 14.11.2006 at Annexure-D. In terms of the order of approval at Annexure - D dated 14.11.2006 the appointment of the employee, who is petitioner in the writ proceedings, came to be approved by the Director of Technical Education, while imposing the condition of completing Ph.D within seven years. The challenge in the writ petition was only as regards imposition of such condition at Sl.No.3 relating to completion of Ph.D.
2. The learned Single Judge by a detailed order has allowed the writ petition while observing that the withdrawal of appointment of the petitioner was contrary to law. It was observed that the petitioner having been appointed by the 5th respondent - Society was promoted as Assistant Professor (PG) as Production Engineer with effect from 01.07.1999 and thereafter a confirmation was made on 14.11.2006. It was observed that the order of -5- NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 confirmation was subject to the condition that the petitioner was required to obtain the Ph.D within seven years in terms of the Government Order dated 30.11.2002. Learned Single Judge has referred to item No.53 of the regulation of AICTE while dealing with the status of Assistant Professor who was not able to complete the Ph.D in seven years from the date of joining. It was observed that in terms of the regulations, if the employee is unable to complete Ph.D within seven years from the date of joining the said lapse would result in increment being stopped until Ph.D is earned. Learned Single Judge taking note of such regulations of AICTE at item No.53 had observed that the consequence of non-completing Ph.D could not result in consequence of termination of employment, but would only result in stopping of increment still completion of Ph.D Degree. Regulation of AICTE item number 53 reads as hereunder: -6-
NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 Whether, Asst. Professor Such candidates will be (Re-designated as required to complete Ph.D Associate Professor w.e.f. within seven years from the 1.1.2006, who are not able date of Joining, failing to complete the Ph.D in which increments shall be seven years from the date stopped until Ph.D is of joining (Direct/CAS) will earned.
be reverted back.
3. Learned Single Judge has also referred to the order passed in WP No.51205-51252/2015, wherein order is passed as regards recovery of emoluments paid to the employee and affirmed by the Apex Court in the case of STATE OF PUNJAB AND OTHERS VS. RAFIQ MASIH(WHITE WASHER)1 wherein it was held that the question of recovery of emoluments paid to employee even it was a wrong payment would not arise. It is further submitted that the order in the case of Lakshmidevamma in W.P. Nos.51205-51252/2015, wherein non-completion of Ph.D within seven years was dealt with while holding that non-completion within the time stipulated would only result in losing of increments until he earns Ph.D Degree has also been referred to. It 1 (2015)4 SCC 334 -7- NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 was observed that the order in the case of Lakshmidevama was confirmed by the Apex Court by its order in SLP Nos.54095-54572/2017. The learned Single Judge has set aside the order dated 05.11.2018 at Annexure-A and noticing that the petitioner had attained superannuation, declared that the petitioner was entitled to all retiral and other benefits by virtue of his service. In this appeal the said order is called in question by the State on various grounds.
4. Learned Additional Advocate General appearing for the State submits that the order of withdrawal of appointment at Annexure-A was on the premise of the audit objections raised and refers to the audit objection report extracted in the memo dated 04.09.2017. It is pointed out that the audit observation was not only on the ground of non-completion of Ph.D. Degree, but also on the ground that no permission was obtained from the Department of Technical Education for conducting the selection process of direct recruitment and the further -8- NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 observation that the appointment of petitioner was taken directly from unaided to aided post without following selection process and was not in consonance with rules and regulations. It is submitted that the audit objection also referred to illegality in the selection process and such aspect has not been adverted to by the learned Single Judge and accordingly submits that the order of the learned Single Judge is to be set aside as not having taken note of audit objection relating to legality in the selection procedure.
5. On the other hand, learned Senior Counsel appearing for the respondent would contend that the petitioner's appointment as a Workshop Superintendent was approved by the 2nd respondent by order dated 14.11.2006 and the said order having conferred rights and legitimate expectation on the petitioner, the petitioner had continued in service till the order dated 05.11.2018, which was twelve years after the approval of his appointment. Further it was submitted that contention regarding -9- NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 illegality of the selection process as made out in the audit objection cannot be raised in light of approval of employment by terms of the order at Annexure-D dated 14.11.2006, wherein the Director of Technical Education had approved the appointment of the petitioner as a Workshop Superintendent as an appointment under special circumstance subject to conditions and such conditions imposed would also indicate that this was a one time appointment and that the petitioner's appointment was required to be treated as one which was a regular appointment. Accordingly, it is submitted that once approval was granted on the 14.11.2006, the question of revisiting such order of approval beyond the reasonable period of time in the year 2018 is legally impermissible in the absence of any element of fraud in the appointment process attributable to the petitioner.
6. It is further submitted that the order of the learned Single Judge as regards to consequence of not completing Ph.D within seven years has been rightly
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NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 passed taking note of the order passed in Laxmidevamma's case, which, subsequently has been approved by the Apex Court, which is on the premise of regulations of AICTE and item number 53, which would indicate that the only consequence of not completing Ph.D within seven years was withholding of increments till Ph.D is earned. Accordingly, it is submitted that order of the learned Single Judge does not call for any interference.
7. It is to be noticed that the audit objections that were raised on two points as seen from Annexure-K, namely; (1) that the appointment of the petitioner was without following selection process and was not in consonance with rules and regulations, (2) that the official i.e., petitioner has not completed Ph.D, while had continued to draw the relevant pay scale.
8. It must be noticed that insofar as not having completed Ph.D within the time stipulated, learned Single Judge has considered in detail such aspect while relying on item No.53 of the AICTE Regulations extracted above. In
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NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 terms of the said regulations, it is clearly provided that consequence of not completing Ph.D within a period of seven years would only result in stoppage of increment till Ph.D Degree is earned. Such conclusion of the Learned Single Judge is in consonance with the law laid down in Lakshmidevamma's case, is affirmed by the Apex Court and accordingly, the audit objection regarding non- completion of Ph.D., Degree has been dealt with by the learned Single Judge in an appropriate manner and does not call for interference.
9. Insofar as the other contention relating to illegality and selection process, as noticed in the audit objections, the order of approval of appointment of the petitioner in terms of the order at Annexure-D would make it clear that the Director of Technical Education has regularized the appointment as the one time measure, which is clear from a reading of the order of approval of appointment dated 14.11.2006. The validity of such approval has not been called in question for a period of
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NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 about twelve years from the date of approval. During such time it is stated that the petitioner has not only enjoyed service in the institution, but services were also lent to the Government, which is a matter of record. Further, it must be noticed that the order of approval of appointment at Annexure-D would make it clear that the order of approval was a one time measure subject to conditions and this having been made by the Director of Technical Education. The State cannot at this point of time, after more than twelve years, turn around to contend that the selection process being illegal the services of the petitioner is required to be discharged. It is also noticed that the order of withdrawal of appointment by virtue of the order at Annexure-A is cryptic, non- speaking order with only reference to audit objections. An employee, who is appointed and has served for a period of more than twelve years, cannot be thrown out of employment without duly constituted inquiry, or at least a summary inquiry, both of which are absent in the present case. Taking note that, petitioner is not to be blamed for
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NC: 2024:KHC-K:6862-DB WA No. 200134 of 2024 the appointment as there is no action attributed as regards the petitioner in the appointment process, mere audit objections after twelve years from the date of approval of his appointment by the Government cannot result in the petitioner's appointment being rescinded and at the most it was open for the Government having taken note of audit objections and proceeded against the person who had committed error in following a wrong procedure of selection. Accordingly, we find no merit in the Wirt Appeal filed and the Writ Appeal filed is rejected.
10. It is clarified that the relief being granted to the petitioner in light of the discussion made above is not to be construed as the Court having overlooked the adherence to correct procedure in appointment, which may be a matter pending consideration in other litigations of the State and the relief being afforded to the petitioner is in light of absence of any lapse on part of the petitioner.
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11. Pending applications, if any, stand dismissed as not calling any adjudication in the light of the disposal of the writ appeal.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SBS List No.: 1 Sl No.: 59.1 CT;BN