Karnataka High Court
Sri. M. Bhima vs The State Of Karnataka on 6 December, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.25020/2015 (S-RES)
BETWEEN:
SRI. M. BHIMA
S/O LATE MALAVAIAH
AGED ABOUT 54 YEARS
LALAGHATTA VILLAGE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT.
...PETITIONER
(BY SRI R P SOMASHEKARAIAH, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF EDUCATION
M S BUILDING
BANGALORE-560001.
2. THE COMMISSIONER
DEPARTMENT OF PUBLIC INSTRUCTIONS
BANGALORE-560001.
3. THE DIRECTOR
DEPARTMENT OF PUBLIC INSTRUCTION
(HIGHER EDUCATION)
BANGALORE-560001.
4. THE DEPUTY DIRECTOR
DEPARTMENT OF PUBLIC INSTRUCTION
(HIGHER EDUCATION)
RAMANAGARA DISTRICT
RAMANAGARA-571511.
5. THE SECRETARY
VAKKALIGARA SARVAJANIKA VIDHYARTHI NILAYA
2
CHANNAPATNA TALUK
RAMANAGARA DISTRICT-571511.
6. SRI C B KUMAR
MAJOR
PHYSICAL EDUCATION TEACHER
VAKKALIGARA SARVAJANIKA VIDYARTHI NILAYA
CHANNAPATNA TALUK
RAMANAGAR DISTRICT-571511.
...RESPONDENTS
(BY SRI M V RAMESH JOIS, AGA FOR R1 TO R4
SRI B.L.SANJEEV, ADV. FOR R5
SRI P.S.JAGADISH, ADV. FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 22.04.2015 PASSED IN R.P.NO.12/2010 BY THE
R-1 VIDE ANNEX-F AND DIRECT THE R-1 TO R-5 TO APPOINT
THE PETITIONER TO THE POST OF PHYSICAL EDUCATION
TEACHER AS A BACKLOG VACANCY WITH ALL MONITORY
BENEFITS FLOWING THERE FROM.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the order dated 22.04.2015, passed in R.P.No.12/2010 (Annexure-F) and for a direction to the 1st respondent to direct the 5th respondent to appoint the petitioner to the post of Physical Education Teacher to backlog vacancy with all monetary benefits. 3
2. Heard Sri R.P. Somashekaraiah, learned counsel for the petitioner, Sri M.V. Ramesh Jois, learned AGA for respondents 1 to 4 and Sri B.L. Sanjeev, learned counsel for 5th respondent. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the 5th respondent-Vakkaligara Sarvajanika Vidhyarthi Nilaya (for short 'the Institution') invited application through public notice dated 01.03.1990 (Annexure-G) to fill up various posts including one post of Physical Education Teacher. Learned counsel would submit that petitioner belongs to Schedule Caste community and the post of Physical Education Teacher ought to have been reserved for schedule caste community. It is submitted that without following the roster and without following reservation in the matter of appointment, the 5th respondent-Institution appointed 6th respondent as Physical Education Teacher on 18.04.1992. Aggrieved by the appointment of 6th respondent as Physical Education Teacher, the 4 petitioner challenged the appointment of 6th respondent before the CRE Cell and CRE Cell on enquiry held that there is no violation of roster in the appointment of 6th respondent and rejected the application of the petitioner. Thereafter the petitioner approached this Court in W.P.No.43413/2002 seeking for a direction to accord approval for his appointment. This Court by order dated 23.11.2005 dismissed the writ petition. However, the petitioner filed R.P.No.754/2005 seeking review of the order dated 23.11.2005. This Court rejected the review petition with liberty to the petitioner to file appeal as provided under the Education Act. Accordingly, the petitioner filed R.P.No.2/2008 before the Commissioner, Department of Public Instructions. The authority by order dated 08.02.2010 rejected the revision petition and upheld the appointment of the 6th respondent. Aggrieved by the order passed in the review, the petitioner filed Revision Petition No.12/2010 before the Appellate Authority and the Appellate Authority passed order on 31.03.2012 rejecting the 5 petitioner's revision. Against which the petitioner filed W.P.No.34082/2014, this Court by order dated 21.11.2014 quashed the order of the Appellate Authority dated 31.03.2012 in R.P.No.12/2010 and remitted the matter for consideration afresh after extending reasonable opportunity of hearing to the parties. The Appellate Authority after hearing the parties, under impugned order dated 22.04.2015 rejected the revision of the petitioner, with an observation that vacancy arising in the Institution shall be filled up by following the reservation. Challenging the said revision, the petitioner is before this Court.
4. Sri R.P. Somashekaraiah, learned counsel for the petitioner contends that 5th respondent ought to have filled up the post of Physical Education Teacher in pursuance to public notice dated 01.03.1990 by a candidate belonging to schedule caste community. The petitioner had applied in pursuance to public notice dated 01.03.1990 for the post of Physical Education Teacher and he was eligible for appointment. Learned 6 counsel would point out that ignoring the case of the petitioner, who belongs to schedule caste, the 6th respondent a general category candidate was appointed. Learned counsel would invite attention of this Court to Social Welfare Department report (Annexure-A) dated 23.04.2004, which opines that the post of Physical Education Teacher ought to have been filled up by persons belonging to schedule caste category. Therefore, he submits that there is violation of reservation policy and appointment of 6th respondent as Physical Education Teacher under order dated 18.04.1992 is contrary to the reservation policy. Learned counsel would also submit that 5th respondent Management had undertaken to fill up the post, which would fall vacant by following the roster and reservation policy as could be found from Annexure-H Memo dated 21.07.1987. Thus he submits that there is violation of the roster policy, appointment of 6th respondent is to be set aside and petitioner is to be appointed as Physical Education Teacher in the place of 6th respondent. 7
5. Per contra Sri B.L. Sanjeev, learned counsel for the 5th respondent would submit that appointment of 6th respondent is proper and recruitment in pursuance to the public notice dated 01.03.1990 was made following the roster and reservation policy of the State. He submits that as on this date, the petitioner would not be entitled for appointment, since he has attained the age of superannuation. Learned counsel invites attention of this Court to Annexure-A and submits that out of three sanctioned Physical Education Teacher posts, one post was filled up by schedule caste person i.e., one Singraiah on 19.07.1971. Therefore, he submits that there is no back-log of post belonging to schedule caste category. He also submits that the CRE cell had conducted enquiry and had come to the conclusion that there is no violation of reservation policy in pursuance to public notice dated 01.03.1990. Thus he prays for dismissal of the writ petition. 8
6. Sri M.V. Ramesh Jois, learned AGA referring to statement of objections filed on behalf respondents 1 to 4, submits that Appellate Authority taking note of the factual position passed impugned order. He submits that 5th respondent-Institution is an aided Institution, wherein three posts of Physical Education Teacher were sanctioned and one post was filled up by schedule caste candidate in the year 1971, by the 5th Respondent-Institution. Hence the question back-log vacancy for schedule caste would not arise. Since the first vacancy was filled up by the schedule caste candidate, the CRE cell had opined that there is no violation of roster or reservation.
7. Having heard the learned counsel for the parties and on perusal of writ petition papers, I am of the view, that the petitioner would not be entitled for relief as prayed in the writ petition for the following reasons:-
The 5th respondent-Institution in terms of Annexure-G public notice dated 01.03.1990 Invited 9 applications from eligible candidates to fill up various posts in the Institution including one post of Physical Education Teacher. The public notice at Annexure-G makes it clear that the post of Physical Education Teacher was not reserved, and it was meant for general merit candidate. After the selection process, the 6th respondent was appointed as Physical Education Teacher on 18.04.1992 and subsequently his appointment was also approved by the competent authority. The contention of the petitioner that one post of Physical Education Teacher ought to have been filled up by a candidate belonging to schedule caste category, since there is one back-log post of schedule caste category cannot be accepted. Initially the petitioner had approached the CRE Cell challenging the appointment of 6th respondent as Physical Education Teacher. The CRE Cell opined that there is no violation of roster or reservation policy, as observed by the Appellate Authority in its order. The petitioner has not made available the order passed by the CRE Cell at the first 10 instance. Annexure-A report by the Social Welfare Department is of the year 2004. It notes that one post of Physical Education Teacher was filled up by one Sri Singraiah belonging to the scheduled caste category. If the first vacancy is filled up by scheduled caste category person, out of three posts, the question of back-log of one Physical Education Teacher would not arise. However, it is to be seen that under impugned order, while upholding the appointment of 6th respondent, the appellate authority has observed that vacancy arising in the 5th respondent-Institution either from retirement, resignation or death shall be filled up by following the roster. Moreover, the petitioner has attained the age of superannuation as on this day. The petitioner was aged 56 years as on the date of filing the writ petition and as on this day, the petitioner is more than 60 years. Therefore, it would be futile to consider the case of petitioner for appointment as Physical Education Teacher. The 6th respondent was appointed to the post of Physical Education Teacher on 11 18.04.1992 and completed more than 30 years of service as on this day.
9. For the reasons recorded above, I am of the view, that there is no merit in any of the contentions raised by the petitioner. Accordingly the writ petition stands rejected.
SD/-
JUDGE NG* CT:bms