Karnataka High Court
Dr. M.K. Nanjappa And Ors. vs State Of Karnataka And Ors. on 17 January, 2003
Equivalent citations: 2003(3)KARLJ51, 2003 LAB. I. C. 3088, 2003 AIR - KANT. H. C. R. 1635, (2004) 1 SERVLR 410, (2003) 3 KANT LJ 51
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT
1. The appellants being aggrieved by the common order passed by the learned Single Judge in W.P. Nos, 112 of 1997, 29569 and 29594 of 1996, dated 29-1-1999 have preferred these writ appeals.
2. The appellants are all Lecturers in the Institution known as BHS Higher Education Society, respondent 3 (hereinafter referred to as the 'Society').
3. The appellants claimed that after the introduction of University Grants Commission scale and staffing pattern from 1-1-1986 the method of appointing Principals in private colleges is based purely on seniority-cum-merit basis from the date of entry as Lecturers.
4. Before the introduction of the new staffing pattern the teaching staff were categorised as Lecturers, Readers and Professors and subsequently after the UGC pattern came into force they were reclassified as Lecturers, Lecturers (Senior Scale) and Lecturers (Selection Grade) on the basis of length of service.
5. It was submitted that if the new pattern is taken into account the seniority will be based purely on the basis of the length of service.
6. By virtue of the length of service and on account of redesignation after the new staffing pattern was introduced the appellants claimed to be seniors to the 4th respondent-Dr. Jayappa.
7. In sum total the argument of the appellants was that although the 4th respondent-Dr. Jayappa was senior to the appellants as in the category of a Reader he could not have been considered for the post of Principal over the heads of the appellants, since the appellants had put in longer years of service.
8. The learned Single Judge dismissed the writ petition filed by the appellants on various grounds.
9. Mr. Vasanth Kumar, learned Counsel for the appellants strenuously submitted that the Government of India, State Government and the University Grants Commission introduced a new staffing pattern. The new staffing pattern of Lecturers, Lecturers (Senior Scale), Lecturers (Selection Grade) depends on their length of service. Before the new pattern came into force the teaching staff were classified as Lecturers, Readers and Professors. It was submitted that individual options were given to the teaching staff whether they wish to opt for the UGC norms or to continue under the old system.
10. It was further submitted that the 4th respondent-Dr, Jayappa accepted the UGC norms. Once the 4th respondent-Dr. Jayappa accepted the new staffing pattern it was submitted that he cannot claim seniority over the appellants and could not have been appointed as Principal which is under challenge by the appellants.
11. It was further submitted that the designation as Lecturers, Readers, Professors and Principals underwent a sea change. The teaching staff after the new pattern were classified as Lecturers, Lecturers (Senior Scale) and Lecturers (Selection Grade). If the new pattern is taken into account the appellants would be considered senior to the 4th respondent-Dr. Jayappa, since in the category of Lecturers (Selection Grade) the appellants are senior to the 4th respondent-Dr. Jayappa.
12. According to Mr. Vasanth Kumar the only criteria for bringing somebody in the category of Lecturer (Selection Grade) is purely the date of entry into service. Since the 4th respondent-Dr. Jayappa had opted to join new UGC scheme he would not be entitled to be appointed as Principal in view of the fact that the date of entry of the appellants into service is earlier.
13. Two questions that arise for consideration are as follows.-
(1) Whether the appointment of 4th respondent-Dr. Jayappa as Principal of the college is an ex-cadre promotion under the merit promotion scheme, since Dr. Jayappa had already been promoted as Professor of Chemistry with effect from 1-7-1989 and that in the category of Reader and Professor admittedly Dr. Jayappa was senior to the appellants under the old pattern or whether the new pattern is to prevail for such appointment as Principal?
(2) Whether the State has implemented the UGC norms with regard to seniority on the basis of date of entry for the purpose of appointment as Principal based purely on the date of entry into service throughout the State?
14. The contention of the State Government was that till the UGC norms are fully implemented the appointment of Principals will have to be based under the old system. If the old system is taken into account then Dr. Jayappa is senior to the appellants both as Reader as well as Professor.
15. It is common ground that the appellants are juniors to the 4th respondent-Dr. Jayappa as Reader or as Professor in the seniority list. Dr. Jayappa is Sl. No. 1 as Reader while the appellants did not even reach the cadre of Readers.
16. The seniority list dated 19-4-1993 under the old norms shows that Dr. Jayappa, 4th respondent was at Sl. No. 4 and the 1st appellant-Nanjappa was at Sl. No. 18, 2nd appellant-KV. Srinivasmurthy was at Sl. No. 10 and the 3rd appellant-A. Sripad was at Sl. No. 11. Therefore, it is clear that Dr. Jayappa, 4th respondent is senior to the appellants in the category of Reader. In fact none of the appellants even reached the cadre of Readers.
17. The appellants as well as 4th respondent were initially appointed as Lecturers by the 3rd respondent-Society. After that, their appointments were approved by the Government. From their initial date of appointment to 31-12-1985 they were drawing State pay scale. In the State pay scales there were 3 cadres, namely, Professors, Readers and Lecturers and the seniority list was being prepared by the 3rd respondent-Management by showing the Professors in the 1st place, Readers in the 2nd place and Lecturers in 3rd place. The names of appellants and 4th respondent were in the 3rd place (in Lecturer cadre). Later on, during 1984 the 4th respondent was promoted to the post of Reader and the appellants were also promoted to the post of Readers during 1985. As such the 4th respondent became senior to the appellants.
18. On 1-1-1986 UGC pay scales were introduced by Government Order No. ED 88 UNI 88, dated 30-3-1990, as such the persons who were holding the post of Professors in State pay scales were redesignated as Selection Grade Lecturers considering the service rendered by them in the said post, Readers as Senior Scale Lecturers considering the service rendered by them in the said post and as Lecturers.
19. Prior to the sanction of UGC pay scales and after the sanction of UGC pay scale also, a senior most person in the college was being appointed as Principal with Ms own pay and allowances plus a special pay of Rs. 100/- was being given for discharging the duties of Principal.
20. Though UGC pay scales were introduced with effect from 1-1-1986, the policy of the Government for the appointment of Principal remained the same i.e., senior most teaching staff of the college under the old scheme was being appointed as Principal with his own pay and allowances.
21. The Government by its Order No. ED 126 DCE 94, dated 2-8-1996 created a separate cadre for the post of Principal, calling them as Principal (Grade-I and Grade-II). In the said Government Order at condition No. 6, it is clearly stated that the minimum eligibility to be promoted as Principal (Grade-I) is 12 years of service plus seniority and 18 years of service plus seniority for Grade-II. Though the appellants fulfill the criteria with regard to service but they lack in seniority.
22. One Mr. Nagaraj who was holding the post of Principal of Vijaya College, Bangalore attained the age of superannuation on 30-4-1996. The 3rd respondent-Society violating the seniority aspect appointed one Dr. Vaidyeshwar, petitioner in W.P. No. 29594 of 1996 as Principal and he reported as Principal on 30-4-1996. Thereafter, the 3rd respondent-Society sent the proposal of Dr. Vaidyeshwar to the department of approval. After scrutinizing the proposal the Departmental Authorities noted that Dr. Vaidyeshwar's appointment as Principal was not made according to the seniority, hence the proposal of the Society was rejected and approval was not granted and the Government by its letter dated 5-10-1996 strictly directed the 3rd respondent-Society to follow the seniority and appoint the 4th respondent-Dr. Jayappa as Principal of Vijaya College, Bangalore with immediate effect, as he is senior to Dr. Vaidyeshwar as well as other appellants.
23. The Government direction dated 5-10-1996 to appoint Dr. Jayappa as Principal of Vijaya College, Bangalore was challenged by the 3rd respondent-Society before this Court in W.P. Nos. 29594 and 29569 of 1996. The learned Single Judge was pleased to uphold the Government direction that Dr. Jayappa has to be appointed as Principal by its order dated 29-1-1999.
24. Aggrieved by the orders dated 29-1-1999, the appellants have preferred these writ appeals praying to quash the order dated 29-1-1999 passed by the learned Single Judge.
25. Dr. Jayappa who became Reader in 1984 is senior to the appellants who became Readers only subsequently in 1985. Further, the appellants cannot claim that they are senior most Selection Grade Lecturers, because of the fact that the Government has not considered the Selection Grade Lecturer as a separate cadre till date. Hence, the policy of the Government before implementation of the UGC scales and after the implementation of the UGC pay scales for appointment (now promotion after 2-8-1996) of Principal is the seniority list as on 31-12-1985.
26. Managements of all the aided colleges of the State have strictly adhered to the seniority aspect and have sent similar proposals for promotion to the post of Principal (Grade-I/II). The Government Department have given approval only if the same is in accordance with the seniority list which stood as on 31-12-1985. The Government for this particular college cannot now deviate from its rules as this would affect all the Principals already promoted throughout the State.
27. The seniority is the only criteria for being promoted as Principal (Grade-I/II) as stated in condition No. 2 of Government Order dated 2-8-1996. The seniority list which existed prior to the implementation of UGC scales is in force till date. As such Dr. Jayappa is senior to the appellants. The 1st respondent has adopted the seniority list as on 31-12-1985 for the appointment to the post of Principal (Grade-I/II), further all the Government Orders and Circulars issued by the Commissioner for Collegiate Education are also directed the Institutions to maintain the seniority list as on 31-12-1985.
28. It is also not in dispute that the system that prevailed on 31-12-1985 under the old system has been affirmed by the Division Bench judgment dated 10-6-1997 of this Court in W.A. Nos. 8006 to 8009 of 1996 for the purpose of seniority and for the cadre post of the Principal as on 31-12-1985. The relevant portion of the Division Bench judgment reads as follows.-
"It was contended before this Court in challenging this clause and the scheme sought to be implemented that the said clause would deprive the appellants chance of promotion. Their seniority stands affected and the scheme in the guise of introducing new pay scale has obliterated the original seniority and the same should not be allowed to stand. Learned Single Judge examined various contentions with reference to the scheme and rejected each one of the contentions advanced on behalf of the appellants by providing cogent reasons. We agree with the view expressed by the learned Single Judge and we find no merit in these appeals".
29. A reference has also been made to this aspect of the matter in the order of the learned Single Judge which is under appeal before us. The learned Single Judge referred to the judgment of this Court in Karnataka Liberal Education, Society, Belgaum v State of Karnataka and Ors., and quoted the relevant portion of the judgment which reads as follows.-
"It is in that background that the Directorate of Education issued instructions directing the institutions to continue the seniority lists approved by the Department and showing the seniority position of the teaching staff as on 31st of December, 1985. The appointments made by the petitioners to the available vacancies of Principals, were in that context found by the authorities to be not in order as the same had been made otherwise than by reference to the seniority list as it stood on the 31st December, 1985. The refusal to approve such appointments and a direction to the petitioner to make appointments as per the said list, was therefore tantamount only to directing the institution to give effect to the policy decision taken by the State Government as contained in Government Order dated 30th March, 1990. In the circumstances it Could not be said to be beyond the powers vested in the respondents nor could the proposed denial of grant to the petitioners-institutions on that basis be said to be improper or outside the purview of the Grant-in-Aid Code".
30. As stated earlier on this aspect the matter stood concluded by the Division Bench judgment dated 10-6-1997 of this Court in W.A. Nos. 8006 to 8009 of 1996 which has only been reaffirmed by the learned Single Judge.
31. Mr. Javid Hussain, learned Counsel for the 4th respondent relied on a pronouncement of the Supreme Court on this aspect of the matter. This judgment undoubtedly has some bearing on this case.
32. Reliance was placed on the Supreme Court judgment in Dr. Rashmi Srivastava v Vikram University, Ujjain and Ors., wherein the Supreme Court has held as follows.-
". . . merit promotee Professors and Readers form a distinct class of ex-cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For this purpose the nature of work they do is irrelevant. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14 and 16(1) would get violated. For these reasons, there would be no occasion to fix inter se seniority of merit promotee Readers and Professors and directly recruited Readers and Professors by treating them as forming one class. Any decision rendered by the University concerned not to discriminate between them in the matter of inter se seniority would be invalid in the absence of any statutory creation of a distinct source of recruitment by promotion by way of amending the parent Act. As the University is governed by the Act which does not contemplate any statutory source of recruitment by way of promotion, whatever sentiments might have been expressed by the Executive Committee of the University for not distinguishing between directly recruited Professors and Readers on the one hand and promotee Readers and Professors on the other hand in the matter of seniority, have no legal efficacy. On the contrary, treating them at par for seniority and promotion is violative of Articles 14 and 16(1)".
33. The Supreme Court has further held a paragraph 45 as follows.-
"45. The question then remains as to how his seniority has to be reckoned as a merit promotee even though he is an ex-cadre Reader or Professor. The answer is obvious. Amongst persons forming the same class to which he belongs, namely, merit promotee Readers or Professors their inter se seniority has to be fixed on the basis of continuous officiation as such merit promotees. Such a separate seniority list of merit promotee Readers and Professors has to be prepared and acted upon for purposes other than seniority and promotion in, and to the posts available to those in the cadre. It is not as if and they are still to be treated as only Lecturers or Readers as the case may be from which posts they got merit promotion, as wrongly assumed by the High Court. In short there have to be two seniority lists, one of the cadre Readers and Professors who are direct recruits and the other of merit promotee Readers and Professors. The directions issued by the High Court in the impugned judgment in paragraph 16 read with the observations in paragraph 12 will have to stand modified as aforesaid. It is, however, clarified that the direction of the High Court that names of respondents 4 to 9 in M.P. No. 1180 of 1989 and respondent 4 in M.P. No. 208 of 1989 in the combined seniority list will have to be deleted has to be sustained. The other directions contained in the later part of paragraph 16 also will have to be sustained".
34. Mr. Sadashivappa, learned Senior Counsel for the Society, respondent 3 also submits that once the learned Single Judge has laid down the criteria for appointment of a Principal they will continue to abide by the old pattern till the new pattern comes into force all over the State for the purpose of office of the Principal. That is the reason why the Society is not aggrieved by the order of the learned Single Judge.
35. It was further submitted by Mr. Sadashivappa that Dr. Vaidyeshwar, the petitioner in W.P. No. 29594 of 1996 who has been appointed as Principal under the new pattern continued in the office as Principal till superannuation by virtue of interim orders of the Court.
36. In these circumstances he submitted fairly that Dr. Vaidyeshwar, the petitioner in W.P. No. 29594 of 1996 would be entitled to all terminal benefits as Principal of the college. Accordingly, the Society is directed to pay all terminal benefits that accrued to Dr. Vaidyeshwar as Principal.
37. It was also submitted by all the Counsels that it was not necessary for the learned Single Judge in the facts and circumstances of this case to have awarded exemplary cost of Rs. 5,000/- while dismissing the writ petitions.
38. Accordingly, the costs awarded by the learned Single Judge stand deleted. Consequently, there is no merit in the writ appeals and the writ appeals are dismissed. There will be no order as to costs.
JUDGMENT After the pronouncement of the judgment Mr. Vasanth Kumar, learned Counsel for the appellants submitted that the appellants may be permitted to make a representation to the State Government under Section 130 of the Karnataka Education Act, 1983.
Heard the Government Advocate and the contesting respondent.
If such a course is possible and is in accordance with law the appellants may make such a representation and the same may be considered by the State Government in accordance with law.