Karnataka High Court
Sri B K Srinivasa vs Bangalore University on 25 October, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
-1-
NC: 2024:KHC:43154
WP No. 24541 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 24541 OF 2023 (S-RES)
BETWEEN:
SRI. B K SRINIVASA
S/O LATE B R KRISHNA MURTHY RAO
AGED ABOUT 63 YEARS
TECHNICAL ASSISTANT(RETD.)
DEPARTMENT OF MATHEMATICS
BANGALORE UNIVERSITY
R/AT NO.305, 10TH MAIN
3RD BLOCK, JAYANAGAR
BANGALORE-560 011.
...PETITIONER
(BY SMT. KUMARI M., ADVOCATE)
AND:
BANGALORE UNIVERSITY
GNANABHARATHI
BANGALORE-560 056
Digitally REP. BY ITS REGISTRAR.
signed by ...RESPONDENT
SUMA B N
(BY SRI. B PRAMOD., ADVOCATE)
Location:
High Court
of Karnataka THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RELEVANT
RECORDS FROM THE RESPONDENT UNIVERSITY AND DIRECT THE
RESPONDENT UNIVERSITY TO GRANT UGC/AICTE PAY SCALE TO THE
PETITIONER RETROSPECTIVELY, BY CONSIDERING HIS
REPRESENTATION DATED 27.09.2023 VIDE ANNEXURE-P AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV
-2-
NC: 2024:KHC:43154
WP No. 24541 of 2023
ORAL ORDER
The petitioner has filed the present writ petition seeking issuance of writ of mandamus directing the respondent -University to grant UGC/AICTE pay scale retrospectively, by considering the representation at Annexure -P dated 27.09.2023. Petitioner has also sought for a direction to the respondent-University to grant all consequential benefits pursuant to extension/continuation of two years service by virtue of the interim order dated 19.12.2019 passed by this Court in W.P.No.9582/2019 by considering the representation at Annexure-P.
2. It must be noticed that the petitioner was appointed as a Technical Assistant which fact is not in dispute. However, the petitioner had taken up the stand that the petitioner despite being appointed as a Technical Assistant was also imparting instruction and performing functions of teaching practical class to the students and accordingly had challenged the endorsement dated 19.03.1998 whereby the petitioner was treated as not -3- NC: 2024:KHC:43154 WP No. 24541 of 2023 being eligible for the benefits which was admissible to category of vacation enjoying staff. Further consequential relief was sought in the said writ petition consequent to setting aside of the communication of 19.03.1998 to consider representation to treat his post as that of a teacher in the University and to grant all consequential benefits.
3. The said writ petition came to be disposed off by order dated 15.07.1998 whereby the University was directed to reconsider representation after examining all material, as to whether the petitioner was giving instruction to students in practical classes as a part of his normal duties. In the light of the same, the learned Single Judge disposed of the writ petition reserving liberty to the petitioner to make a representation setting out the nature of normal duties which had been discharged.
4. Consequent to such direction the Bangalore University has passed a endorsement dated 08.10.1998 at -4- NC: 2024:KHC:43154 WP No. 24541 of 2023 Annexure-H which is a detailed endorsement and has adverted to his appointment as of a Technical Assistant and referring it to be a `non teaching post'. It is specifically observed in the said endorsement that his work is `neither teaching theory in the class room nor in the computer laboratory', his job is to assist the students to use the Data Entry Machine and Computers. It was observed that he assists in the laboratory where the teachers would be conducting practicals. It was concluded in the said endorsement as follows:
"The Post of Technical Assistant is a non-teaching one and so he cannot be granted benefits attached to the teaching posts".
5. It must be noticed that subsequently petitioner filed W.P.No.9582/2019 seeking various reliefs including setting aside of the Notification dated 22.11.2018. The said writ petition came to be disposed of while noticing that the petitioner had not challenged the endorsement dated 08.10.1998. Paragraph 7 reads as follows: -5-
NC: 2024:KHC:43154 WP No. 24541 of 2023 "7. Though the learned counsel appearing for the petitioner has referred to the various judgment passed by this Court at Annexures- J1 to J3, to substantiate that the post of Technical Assistant could be considered as a Teaching Post, however, taking into consideration the observation made by this Court, in W.P.No.8903 of 1998 dated 15.07.1998, wherein, the petitioner has challenged order dated 19.03.1998, declaring the action of the respondent-University herein treating the petitioner as non-teaching staff of the University and this court, by order dated 15.07.1998 directed the petitioner to make a representation to the respondent-authorities.
Pursuant to the same, the petitioner has approached the respondent-University and the respondent- University by Endorsement dated 08.10.1998 (Annexure- R3) has rejected the claim made by the petitioner for consideration of the case of the petitioner as a Teaching Faculty. Having gone through the averments made in the writ petition, nothing has been disclosed by the petitioner in the writ petition about filing of the said writ petition by the petitioner before this Court in W.P.No.8903 of 1998 seeking similar relief and the rejection of the same by Endorsement dated 08.10.1998 in the present writ petition. Taking into consideration the factual aspects on record that, the petitioner has not brought to the notice of this court and approached the court with clean hands. Nowhere it is stated in the writ petition, about order passed by this Court in W.P.No.8903 of 1998, and the rejection of the claim made by the petitioner as per Endorsement dated 08.10.1998. In that view of the matter, the writ petition is liable to be dismissed for suppression of material facts, that too, claiming similar relief in this writ petition. Though the learned counsel appearing for the petitioner argued that the present writ petition is filed only for pensionary benefits, however, leaving out the material facts rejection of the same as per Annexure-R3 amounts to suppression of the material facts, and therefore, the -6- NC: 2024:KHC:43154 WP No. 24541 of 2023 petitioner is not entitled for discretionary relief/equitable relief under Article 226 of Constitution of India. In that view of the matter, writ petition is dismissed with exemplary cost of Rs.50,000/- payable by the petitioner to the Karnataka State Legal Service Authorities within four weeks from the date of receipt of certified copy of this order. Registry is directed to send copy of this order to the Karnataka State Legal Service Authority, Bangalore for further action."
6. Said matter was taken up in appeal in W.A.No.843/2023 which has also been disposed off in terms of the observations made at paragraphs 3 and 4 which is as follows:
"3. We have perused the material placed on record particularly, copy of the order dated 15.07.1998 passed by a learned Single Judge in W.P.No.8903/1998 filed by the appellant which is placed on record at Annexure-R2 and the prayers, statements made in paragraph 6 of memorandum of W.P.No.9582/2019 giving reference to filing of W.P.Nos.12266/1981, 5170/2022, 10545/2005, 13203/2005, 12481-12482/2014, 31788/2016, 13666/2017 and W.A.No.8746/1996 to submit that similarly circumstanced persons were before this Court and these said matters were filed right from the year 1981 to 2017. The learned Single Judge has considered the above matters in all respect at the time of dismissal of W.P.No.9582/2019 on the facts which cannot be faulted with. Therefore, the present writ appeal being meritless deserves to be dismissed.
4. At this stage, we state that admittedly, the appellant was working as a Technical Assistant in the Department of Mathematics, Central College Campus, Bangalore University and the learned Single -7- NC: 2024:KHC:43154 WP No. 24541 of 2023 Judge has imposed exemplary costs of Rs.50,000/- payable by the appellant to the Karnataka State Legal Services Authority within a stipulated period of four weeks from the date of receipt of copy of the order. We, therefore, deem it appropriate to reduce the costs. The appellant is directed to pay the exemplary costs of Rs.10,000/- to the Karnataka State Legal Services Authority within four weeks from today. Except this variation in the costs, the order dated 06.06.2023 passed by the learned Single Judge in W.P.No.9582/2019 is upheld. Accordingly, the writ appeal is disposed of."
7. Petitioner has now come up before this Court and he is seeking for the relief as referred to above.
8. It must be noticed that admittedly the endorsement dated 08.10.1998 has not been challenged. By virtue of the said endorsement, the petitioner was not considered to be eligible for the benefit of a teaching staff and it was specifically observed that his post of Technical Assistant was a non-teaching post. It is not in dispute that the UGC/AICTE pay scale was only in relation to teaching staff. If that were to be so, the petitioner cannot claim benefits without challenging the endorsement dated 08.10.1998.
-8-
NC: 2024:KHC:43154 WP No. 24541 of 2023
9. Though the learned counsel for the petitioner has averred that the foremen working in the University have been granted UGC/AICTE pay scale, however, that question cannot be reopened at present considering the observations made in the writ appeal at paragraph 3. In the writ appeal at paragraph 3 the Division Bench refers to authorities relied upon by the petitioner in its order and rejects the matter on merits as well. The orders at Annexure-N and N1 relied on by the petitioner were dated 21.07.2011 and 17.12.2019. While admittedly petitioner has retired in 2021. Petition itself has been filed in the year 2023. Seeking of relief in installments cannot be permitted. Hence the relief that the petitioner seeks that was eligible for being extended UGC/AICTE pay scale on grounds other than that he was doing work as a teaching staff ought to have been raised and decided in the first round itself and if that were to be so second round of litigation at this stage is impermissible. -9-
NC: 2024:KHC:43154 WP No. 24541 of 2023
10. Though learned counsel for petitioner submits that if in the first round of litigation petitioner is non- suited only on the ground of suppression of material facts, the second round of litigation ought to consider the case of the petitioner on merits, by placing reliance on the order of the Apex Court in the case of ARUNIMA BARUAH VS UNION OF INDIA AND OTHERS reported (2007)6 SCC
120.
11. It must be noticed that till date the endorsement dated 08.10.1998 still remains without being challenged. If it is the case of the petitioner that despite such endorsement still the petitioner is entitled to pay scale of UGC/AICTE such grounds cannot be considered in the present round of litigation and it is constructively barred by virtue of the order of the Division Bench in the later proceedings. It also ought to be noticed that despite the petitioner being a Technical Assistant and had attained superannuation being a non teaching staff at 60 years by virtue of the interim order passed in W.P.No.9582/2019
- 10 -
NC: 2024:KHC:43154 WP No. 24541 of 2023 the petitioner was permitted to work beyond the period of superannuation for non teaching staff at 58 years for a further period of two years and admittedly salary has been paid.
12. Needless to state that the continuance of service for two years pursuant to the interim order cannot result in the said period being counted for service for pension as well in the light of dismissal of W.P.No.9582/2019. Accordingly this Court finds that the present proceedings cannot be permitted to be entertained so as to result in reopening the right of reconsideration of the petitioner to be granted UGC/AICTE pay scale.
13. Needless to state the petitioner submits even as per his own pay scale without considering the claim of UGC/AICTE even his leave encashment has not been considered and paid. The said aspect is kept open for the University to consider, if leave encashment even as per admitted pay scale and service conditions of the petitioner
- 11 -
NC: 2024:KHC:43154 WP No. 24541 of 2023 is not considered. Accordingly petition is disposed of. Such claim of earned leave encashment to be considered in accordance with law by the University within a period of eight weeks from the date of receipt of certified copy of this order while clarifying that such consideration would be without taking note of two years service put in by the petitioner pursuant to the interim order passed in the writ petition No.9582/2019.
SD/-
(S SUNIL DUTT YADAV) JUDGE SBN List No.: 1 Sl No.: 21