Karnataka High Court
Sri S C Sadashiva vs Smt Poornima K S on 22 November, 2012
Bench: Chief Justice, B.V.Nagarathna
-1-
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 22ND DAY OF NOVEMBER, 2012
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.A.Nos.400/2012 C/w 384/2012, 385/2012 (S-RES).
W.A.No.400/2012
BETWEEN:
SRI.S.C.SADASHIVA,
S/O. S.CHANDRASHEKAR JOIS,
AGED ABOUT 45 YEARS,
R/O. S.P.M.ROAD,
SAGAR SHIMOGA-577401. ... APPELLANT
(BY SRI: JAYAKUMAR.S.PATIL, SR.COUNSEL FOR
SRI.DAYANAND.S.PATIL, ADV.)
AND:
1.SMT.POORNIMA.K.S.,
W/O. SRI.T.P.ASHOKA,
AGED ABOUT 52 YEARS,
R/O AGRAHARA, BEHIND PLD BANK,
SAGAR-577 401,
SHIMOGA.
2.MALNAD DEVELOPMENT FOUNDATION,
TARAPUR CAMPUS,
JOG ROAD, SAGAR, SHIMOGA 577 401,
REP. BY ITS GENERAL SECRETARY.
3.THE PRINCIPAL,
LALBAHADUR ARTS, SCIENCE AND
S B SOLABANA,
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SETTY COMMERCE COLLEGE,
SAGAR,
SHIMOGA DISTRICT-577 401.
4.REGIONAL JOINT DIRECTOR OF
COLLEGIATE EDUCATION,
DEPARTMENT OF COLLEGIATE EDUCATION,
SHIMOGA-577 401.
5.COMMISSIONER FOR COLLEGIATE
EDUCATION, PALACE ROAD,
BANGALORE-01.
6. STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPT. OF EDUCATION,
M.S.BUILDING,
BANGALORE-01. ... RESPONDENTS
(BY SRI: BASAVARAJ KAREDDY, PRL.GA FOR R4 TO R6)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED
IN THE WRIT PETITION NO.16786/2007(S-RES) DATED
05/12/2011.
W.A.No.384/2012
BETWEEN:
SRI.S.C.SADASHIVA,
S/O. S.CHANDRASHEKAR JOIS,
AGED ABOUT 44 YEARS,
R/O. S.P.M.ROAD,
SAGAR SHIMOGA-577 401. ... APPELLANT
(BY SRI: JAYAKUMAR.S.PATIL, SR.COUNSEL FOR
SRI.DAYANAND.S.PATIL, ADV.)
AND:
1.SMT.POORNIMA.K.S.,
-3-
W/O. SRI.T.P.ASHOKA,
AGED ABOUT 52 YEARS,
R/O AGRAHARA, BEHIND PLD BANK,
SAGAR-577 401,
SHIMOGA.
2.MALNAD DEVELOPMENT FOUNDATION,
TARAPUR CAMPUS,
JOG ROAD, SAGAR, SHIMOGA 577 401,
REP. BY ITS GENERAL SECRETARY.
3.THE PRINCIPAL,
LALBAHADUR ARTS, SCIENCE AND
S B SOLABANA, SETTY COMMERCE COLLEGE,
SAGAR, SHIMOGA DISTRICT-577 401.
4.COMMISSIONER FOR COLLEGIATE
EDUCATION, PALACE ROAD,
BANGALORE-01.
5. STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPT. OF EDUCATION,
M.S.BUILDING,
BANGALORE-01. ... RESPONDENTS
(BY SRI: BASAVARAJ KAREDDY, PRL.GA FOR R4 & R5)
*****
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED
IN THE WRIT PETITION NO.3761/2008(S-RES) DATED
05/12/2011.
W.A.No.385/2012
BETWEEN:
SRI.S.C.SADASHIVA,
S/O. S.CHANDRASHEKAR JOIS,
AGED ABOUT 44 YEARS,
-4-
R/O. S.P.M.ROAD,
SAGAR SHIMOGA. ... APPELLANT
(BY SRI: JAYAKUMAR.S.PATIL, SR.COUNSEL FOR
SRI.DAYANAND.S.PATIL, ADV.)
AND:
1.SMT.POORNIMA.K.S.,
W/O. SRI.T.P.ASHOKA,
AGED ABOUT 52 YEARS,
R/O AGRAHARA, BEHIND PLD BANK,
SAGAR-577 401,
SHIMOGA.
2. STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
HIGHER EDUCATION,
M.S.BUILDINGS, BANGALORE-01.
3.COMMISSIONER FOR COLLEGIATE
EDUCATION, PALACE ROAD,
BANGALORE-01.
4.REGIONAL JOINT DIRECTOR OF
COLLEGIATE EDUCATION,
SHIMOGA.
5.MALNAD DEVELOPMENT FOUNDATION,
TARAPUR CAMPUS,
JOG ROAD, SAGAR, SHIMOGA 577 401,
REP. BY ITS GENERAL SECRETARY.
6.THE PRINCIPAL,
LALBAHADUR ARTS, SCIENCE AND
S B SOLABANA,
SETTY COMMERCE COLLEGE,
SAGAR, SHIMOGA DISTRICT. ... RESPONDENTS
*****
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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED
IN THE WRIT PETITION NO.489/07 DATED 5/12/11.
THESE APPEALS BEING RESERVED AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
NAGARATHNA J., These appeals assail the orders dated 05/12/2011 passed in W.P.No.16786/2007, W.P.No.3761/2008 and R.P.No.489/2007. These matters have a checquered history.
2. For the sake of convenience, the parties shall be referred to in terms of their status in W.P.No.16786/2007.
3. The second respondent is a private educational Institution managed by the first respondent - Foundation. The first respondent had issued a Notification inviting applications for filling up of two vacancies of Lecturers in English and the Selection Committee constituted for selection of suitable candidates on merit had assigned ranking to one Sri P.V.Subbaraya, 6th respondent and the petitioner as Rank Nos.1 to 3 respectively. However, the 1st respondent had appointed the petitioner in preference to the -6- 6th respondent, which was assailed in W.P.No.9629/88. During the pendency of the said writ petition, the appointment of the 6th respondent was approved by the Director and the said writ petition was dismissed as having become unnecessary. Therefore, the validity of the appointment of the petitioner was not considered in the said writ petition. Subsequently, it was held in W.P.No.25083/1999 filed by the petitioner that the 6th respondent was entitled to be considered for the purpose of assignment of ranking in the seniority list on the date of which, the petitioner came to be appointed, which was also the conclusion reached by the 1st respondent by its order dated 22/05/1985, which was assailed by the petitioner in W.P.No.25083/1999. In the said writ petition, a learned Single Judge of this Court held as under
"When the claim of the 6th respondent could not have been ignored for appointment on the basis of the ranking assigned in the select list, it follows that once the 6th respondent is appointed, he is entitled for assignment of seniority on the basis of ranking assigned in the select list."-7-
Accordingly, W.P.No.25083/99 filed by the petitioner was rejected by order dated 06/01/2003.
4. Thereafter, by order dated 05/10/2007, the State Government said it had no objection for the withdrawal of approval of the appointment of the petitioner, which was given on 08/06/1988. The said order was assailed by the petitioner in W.P.No.16786/2007. Since the said withdrawal of the approval was without hearing the petitioner, the impugned order dated 05/10/2007 was quashed and the writ petition was disposed of as under:-
"In that view of the matter, impugned order at annexure "A" is quashed. Matter is referred to the Secretary, Education Department for disposal of the same in accordance with law after affording opportunity to the petitioner with regard to the approval granted for the appointment of petitioner. It is made clear, for the present, the 6th respondent will not be having any grievance. However, if any decision is taken adverse to the interest of the 6th respondent, then he can move this Court or any other appropriate authority."-8-
Against the said order, W.A.No.400/2012 has been filed.
5. In the interregnum respondent No.6 [the appellant herein] had filed W.P.No.8881/2006 being aggrieved by the non-fixation of his seniority in the college. The said writ petition was disposed of on 03/01/2007 with a direction to consider the representation of respondent No.6 in the light of the findings of the revisional authority and also observation made by this Court in the earlier litigation. Thereafter, CCC.436/2007 was filed by respondent No.6.
6. During this period, resolution dated 12/12/2007 was passed by the first respondent resolving to treat the respondent No.6 as senior to the petitioner. The said resolution was assailed by the petitioner in W.P.No.3761/2008. The said writ petition was disposed of in the following manner:-
"In view of the order passed in the
connected writ petition 16787/2007, the
consequential order impugned herein, passed by the Management pursuant to the order of the Government is also quashed."
-9-Against the said order, W.A.No.384/2012 is filed.
7. R.P.No.489/2007 was filed by the petitioner seeking permission to withdraw W.P.No.25083/99 filed by the petitioner. The review petition was allowed in the following terms:-
"ORDER Delay of 1778 days in filing the review petition is condoned.
Review Petition is allowed.
Petitioner is also permitted to withdraw the writ petition filed by her in W.P.25083/1999 and that would enable the petitioner to urge all contentions before the Secretary, Education Department and it is for the Secretary to hear the petitioner and pass appropriate orders, according to law."
Against the said order, W.A.No.385/2012 has been filed.
8. We have heard the learned senior counsel for the appellant and the learned AGA for Respondent Nos.4 to 6. -10-
9. During the course of submission, it has been brought to our notice by the appellant's counsel that after the filing of the writ appeals, the first respondent herein [writ petitioner] passed away. Since the matter pertains to inter se seniority between the writ petitioner and the respondent No.6 [appellant herein] and in view of the demise of the petitioner, the only aspect that would have to be considered is as to whether the orders passed by the learned Single Judge have adversely affected the appellant herein.
10. In W.P.No.9629/88, filed by the 6th respondent - appellant herein, the grievance was that the Director of the Collegiate Education had not approved his appointment. During the pendency of the writ petition the Director had approved the appointment and therefore, the writ petition was dismissed as having become unnecessary.
11. In W.P.No.16305/88, being aggrieved by the withdrawal of approval granted by the Director of Collegiate Education, the petitioner preferred the writ petition. In the said writ petition, it was stated that the appointment of the -11- petitioner was made by mistake and therefore, the approval granted was withdrawn. But the withdrawal of the approval was quashed by order dated 27/05/1996 as it was made without hearing the petitioner.
12. Thereafter, W.P.No.25083/99 was disposed of on 06/01/2003, rejecting the petition filed by the petitioner assailing the order of the Secretary, Higher Education. Subsequently, the Department sought permission of the Government for approval of the appointment of the petitioner on 08/06/1988. The same was permitted by order dated 05/10/2007.
13. In W.P.No.16786/2007, the order withdrawing the approval granted to the petitioner on 05/09/2007 was quashed and the matter was remanded to the Secretary, Education Department, for reconsideration, protecting the interest of the appellant herein. The said order would not in any way affect the position of the respondent No.6 as the grant or withdrawal of approval to the petitioner would not -12- affect the appellant or the Respondent No.6. Therefore, the Writ Appeal No.400/2012 being devoid of merit is dismissed.
14. In R.P.489/2007, the petitioner was permitted to withdraw W.P.25083/99, which writ petition was infact, rejected, wherein, certain observations were made in favour of the appellant herein. It is pursuant to the said observations and pursuant to the order passed in W.P.No.8881/2006 that the resolution dated 12/12/2007 was passed. By permitting the petitioner to withdraw W.P.No.25083/99 in R.P.No.489/2007, the learned Single Judge consequently, quashed the resolution dated 12/12/2007 granting seniority to the respondent No.6 [appellant herein] above the petitioner - 1st respondent.
15. We are of the view that the learned Single Judge ought not to have permitted the petitioner/1st respondent herein to withdraw W.P.No.25083/99 and also quash the resolution of the management dated 12/12/2007, because pursuant to order in W.P.No.16786/2007, the question of withdrawal of approval granted to respondent No.1 is yet to -13- be decided. Therefore, till that decision is crystallised, it was unnecessary to disturb the observations made in favour of the appellant in W.P.No.25083/99 as well as W.P.No.8881/2006 on which basis resolution dated 12/12/2007 was passed by the management of the college, particularly when the order in W.P.No.8881/06 is still in operation. Moreover, for the purpose of seniority the ranking in the select list is a relevant consideration which is not in dispute. Also, the appointment of appellant was not a subject matter of controversy in any of the earlier proceedings.
16. Therefore, we allow W.A.Nos.385/2012 and 384/2012 while dismissing W.A.No.400/2012. The appellant is bound by the order passed in W.P.No.16786/2007, wherein his interest is also protected.
Having regard to the demise of the writ petitioner/respondent No.1 herein, we think that there would be no surviving grievance as far as the appellant is concerned. Vis-a-vis the 1st respondent as the dispute -14- between them is one of seniority and not with regard to their appointment as such.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE * mvs Index: Y/N