Karnataka High Court
Mahila Vidylaya Mandal vs The Joint Director Of Public ... on 25 February, 2012
Author: N.K.Patil
Bench: N.K.Patil
IN THE HIGH COURT OF KARNAT
AKA, CIRCUIT BENCH
AT DHARWAD
DATED THIS THE 25TH DAY OF FEBRUARY, 2012
:BEFORE:
THE HON'BLE MR. JUSTICE N.K, PA
TIL
W.P.No. 18803 of 2005(S-R)
Between:
Mahila Vidylaya Mandal
Mahila Vidyalaya High School,
3957/174+175, College Road,
Belgaum- 590 001,
Rep. by its Secretary.
Shrimati Pratibha Dinkar Apte,
Age: 59 Years,
Retd. Head Mistress Of
Mahila Vidyalaya High School,
R/o Manorama Sadan,
Wada Compound, Angol
Belgaum-590 006.
Petitioners
(By Sri. Ram Apte for Sri.B.S.Umesh
, Advocate>
And:
The Joint Director of Public Ins
truction,
Belgaum Division,
Belgaum 590 001
(The Competent Authority;
The Regional Secretary,
Karnataka Secondary Educatio
n
Examination Board,
7
And Ex-Officio Joint
Director of Public Instruction,
Belgaum Dn., Belgaum,)
2. The Secretary to Government of Karnataka,
Secondary Education Dept.,
Bangalore 560 001.
Respondents
(By Sri. P.H.Gotkhindi, HCGP.)
This W.P. is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the letter
dated 15.5.2004 vide Annexure-U and dated 29.10.97
by the Secretary to Government vide Ann-Ui in so far
as claims to give a general direction in respect of the
date of approval of head masters and etc.
This W.P coming on for Preliminary Hearing in 'B'
Group this day, the Court made the following
ORDER:
The petitioners, assailing the correctness of the impugned communication dated 15.5.2004 vide Annexure-U and dated 29.10. 1997 issued by the Under Secretary to government vide Annexure-U 1 respectively, so far as it claim to give a general direction in respect of the date of approval of Head Masters, have presented this petition. Further, petitioner has sought to direct he respondents to give approval to the appointment! / j promotion of petitioner No.2 w.e,f. 1.4.1993 and to make her pay fixation on the basis of her appointment / promotion as Head Mistress w. e. f.
1.4.1993 and to pay her the consequential pay difference with interest at 12% p.a. on the arrears.
Further, petitioners have sought to direct the respondents to pay the second petitioner terminal benefits like DCRG (Gratuity) commutation of pens ion, leave encashment benefit and pension calculated on the basis of her appointment/promotion as Head Mist ress w.e.f. 1.4.1993 with interest at 12% p.a. on the with held payments.
2. In brief, the case of the petitioners are:
First petitioner is a recognized Private Educational Institution in Karnataka, which is also recognized as a linguistic minority institution. The Institution has been receiving grants from the government of Karnataka under the Grants-in-Aid Code and second petitioner is its retired employee. It is the further case of the petitioners that, 7--4
second petitioner had been appointed as an Assistant Teacher in the first petitioner School in the year 1981 , later she was confirmed in that post. The second petitioner havi ng continuously served in that post sincerely, diligently and ably for over 12 years and having been found by the first petitioner as suitable and eligible in all respects to be promoted as the Head Mistress of the High School, has promoted her as Head Mistress w.e.f, 1.4.1993 against a clear vacancy vide Annexure-A. Thereafter, first petitioner had sent a proposal to the concerned authority on 26.4 .1993 vide Annexure-B, for approval of the promotion/app ointment of second petitioner as the Head Mistress of Mah ila Vidyala High School along with all necessary documen ts. But the said authority has not granted approval to the prom otion of the second petitioner for the reasons and during the pendency of the approval application, first petit ioner has removed the second petitioner from the post of Head Mistress with effect from 9.3.1994 vide Annex ure--C. Being aggrieved by the same, second petitioner has submitted her application to the DDPI Belgaum vide Annexur es-D and E 7--
respectively but the DDPI failed to take any effective action on those appellations. Being aggrieved by the order of the first petitioner, second petitioner has file d an appeal before the K.P.E.l. Appellate Tribunal, Belgau m. The said Tribunal, after hearing the appeal on merits, allo wed the same by its order dated 17.7.1995 and directed rein statement of second petitioner as Head Mistress, with full bac k wages, continuity of service and other consequential benefit s. Against which, first petitioner has filed a Civil Revision Petition No.3224/1995 before this Court and obtained an interim stay and later on, the same was dismisse d vide Annexure-G. Being aggrieved by the said order, firs t petitioner has filed C,P.No.341/2000 which came to be reje cted by this Court, confirming the order passed by the Trib unal vide Annexure H. Thereafter, second petitioner has giv en her representation to the D.D.P.I. Belgaum vide Annexu re-J dated 11.12.1999, requesting for her reinstatement and approval to her initial appointment/promotion as Head Mistress w.e.f. 1.4.1993. After repeated requests by the second petitioner, first petitioner vide order dated 12.3.200 1 based on the Managing 7 --6
Committee Resolution no.3 date d 8/9.3.2001, reinstated her as Head Mistress with retrospecti ve effect i.e. w.e.f. from 1.4.1993 as directed by the Tribunal vid e Annexure-K. Thereafter, first petitioner by letter dated 1 1.5.2001 has sent a proposal for approval of reinst atement/promotion of the second petitioner with retrospective effect from 1.4.1993 to the competent authority vide Annexure--L along with necessary documents. The Compete nt Authority by its order dated 17.10.2002 gave approval to the promotion / appointment/reinstate ment of the second petitioner w.e.f. 17.10.2002 vide Annexure-O. The reafter, second petitioner has requested the competent authority, for proper fixation of pay vide Ann exures P, who in turn, has sent a letter dated 20. 10.2003 to the first petitioner stating that the pay fixation cannot be done w.e.f. 1.4.1993 vide Annexure-R. In reply to the sam e, first petitioner has sent a letter dated 22,12.2003. Second petitioner has retired by super-annuation w.e.f. 31.12.2003. Thereafter, respondents were called upon vide notice of intended suit dated 20.4.2004 to sanction pay fixation of the second
--
/ 7 petitioner vide Annexure-T, To that, an evasive reply dated 15.5.2004 had been received from the first respondent referring about the letter dated 29.
10.1997 which are at Annexures-U and U 1. Thereafter, second petitioner has issued one more notice through cou nsel to Ri and 2 vide Annexure-X dated 13.4.2005. Taking all these aspects into consideration, petitioners have presen ted this petition.
3. I have heard the learned counsel for the petitioner and learned Government Pleader appeari ng for respondents.
4. Learned counsel for petitioners, at the outset submitted that respondents have com mitted an error in not considering the notice issued by the petitioners dated 20.4.2004 for compliance of the directions issued by the KPEI Appellate Tribunal which was con firmed by this Curt in Civil petition and which was apprise d by the petitioners by giving detailed representation to the respondents. The respondents instead of considering the same, rejected it on hyper technical ground referring the earlier communication dated 25.9.1997. The said communication is a correspondence between the resp ondents and it is not / --
8binding on the petitioners. Therefore, he submitted that this writ petition is liable to be allowed.
5. Per contra, learned Government Pleader appearing for respondents, inter-alia tried to substantiate the impugned communication. But after going through the order passed by the Tribunal and affirmed by this Court, the application filed by the petitioners and the legal notice issued through her counsel, has submitted that, the same will be considered and disposed of in accordance with the Education Act and Rules, if not already considere d and disposed of.
6. After hearing the submissions made by learned counsel for the parties and after careful perusal of the materials available on record, it emerges that, second respondent has committed a grave error or illegality or much less material irregularity in proceeding to issue a communication which has resulted in miscarriage of justice.
It is the specific case of the petitioners that, second petitioner has submitted her detailed repre sentation for compliance of the direction issued by the Trib unal that she '4----
9is entitled for all the benefits and the Man agement first petitioner has also forwarded the resolution complying the directions issued by the Tribunal with recomme ndation for approval of the second petitioner as Head Mistress with retrospective effect. Instead of considering the same, second respondent has issued the endorsement vide Annexure-U dated 15.5.2004 on the basis of the earlier com munication dated 19.7.1994. If the said authority has gone through the order passed by the Tribunal which was conf irmed by this Court, it ought not to have issued such a communication.
Therefore, I am of the considered view that , without going further into the merits and demerits of this case, the impugned endorsement issued by the second respondent cannot be sustained and is liable to be rejec ted. Further, it emerges that, second petitioner has issued notice duly signed by the first petitioner Management and his counsel on 9.6.2004 and the same is neither considere d nor disposed of so far, Keeping the same in abeyance and not taking any decision in accordance with law by the respondents is not justifiable.
107. Having regard to the facts and circumstan ces of the case, the writ petition filed by the petition ers is allowed in part.
The impugned communication dated 15.
5.2004 vide Annexure-U is hereby set aside and mat ter stands remitted back to the respondents- 1 and 2, for reco nsideration afresh, with a direction to consider the representat ion- cum- notice issued by the petitioners vide Annexu re-V dated 6,9,2004 and dispose of the same, in the light of the order passed by the Karnataka Education Appellate Trib unal and confirmed by this Court, and dispose of the sam e, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this ord er, after affording reasonable opportunity of hearing to the petitioners, if not already considered and disposed of.
Ordered accordingly.
Sd1
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