Karnataka High Court
Smt..A.V.Gayathri W/O Ravi Kumar vs The State Of Karnataka Rep. By Its ... on 6 March, 2015
Bench: K.L.Manjunath, P.B.Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH 2015
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE P.B. BAJANTHRI
WRIT APPEAL NO.16969/2011(S-RES)
BETWEEN:
Smt. A.V. Gayathri,
W/o. Ravi Kumar,
Age: 48 years, Occ: Service,
R/at No.49, Maramma Temple Street,
8th Cross, Malleswaram,
Bangalore - 560 003.
...APPELLANT
(By Sri Prasanna V.R. Advocate)
AND:
1. The State of Karnataka,
Rep. by its Secretary,
Department of Education,
M.S. Building,
Bangalore - 560 001.
2. The Addl. Secretary -2 to Govt.
(Primary & Secondary Education),
Dept. of Education,
Nrupathunga road,
Bangalore - 560 001.
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3. The Director of Pre-University
Education Board,
Palace road,
Bangalore.
4. Arya Vidya Shala Parents' Association,
Rep. by its Secretary,
Gandhinagar,
Bangalore - 560 009.
...RESPONDENTS
(By Sri D. Nagaraj, AGA for R1 to R3;
Sri M. Aswathanarayana Reddy, Advocate for R4)
This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the order
passed in the Writ Petition No.7508/2009 (S-RES) dated
20.09.2011.
This Writ Appeal coming on for hearing and having
been heard and reserved for judgment, P.B.BAJANTHRI, J.,
delivered the following:
JUDGMENT
The writ petitioner is the appellant before us. The appeal was filed against order dated 20.9.2011, whereby the learned Single Judge of this Court has partly allowed the writ petition filed by the appellant in W.P.No.7508/2009.
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2. The fourth respondent invited applications for the post of Accountant-cum-clerk on 27.7.1994. The appellant who was one of the candidate for the said post was appointed on 20.9.1995. The 3rd respondent approved the appointment of the appellant on 6.5.1996. Having regard to the staff pattern available in the fourth respondent and the students' strength, the question of filling up of the post of accountant-cum-clerk was not permissible. Noticing the said error/defect the third respondent cancelled the appointment of the appellant and further in accordance with students' strength read with reservation policy one Smt. P. Kanmani was appointed as a clerk-cum-typist and her appointment was approved on 2.7.2001. The appellant aggrieved by the order of the third respondent dated 2.7.2001 preferred revision petition in No.64/01 before the first respondent under Section 131 of the Education Act, 1983. The said revision petition was disposed of by the first respondent while holding that the third respondent 4 has committed mistake and created problem while observing that there was no provision to fill up the post of Accountant-cum-clerk with aid of the Government and further directed to accommodate both the appellant and Smt.Kanmani while upholding 3rd respondent's decision dated 2.7.2001. On 7.2.2002 the appellant's services have been adjusted against the vacancy which occurred due to promotion of one Sri. Veerabhadraiah in Vijaya Independent Pre-University College, Jayanagar IV Block, Bangalore and her pay was refixed on 17.7.2002 in the post of second division assistant and further ordered that the excess payment made to the appellant should be recovered and remitted to the Government. The appellant aggrieved by posting her as SDA, re-fixation of her pay and order of recovery dated 17.7.2002 preferred a revision petition before the first respondent under Section 132(2) of the Karnataka Education Act, 1981. The same was disposed of on 17.2.2003, while upholding the order dated 17/7/2002. 5 The appellant aggrieved by the aforesaid orders dated 17.7.2002 and 17.2.2003 filed a writ petition before this Court in W.P.18344/03 which came to dismissed on the ground of alternative remedy under Section 130 of the Education Act. Accordingly, the appellant preferred an appeal before the first respondent against the order dated 17.2.2003. The said appeal was disposed of on 4.2.2009 while upholding the order dated 17.2.2003. Aggrieved by the order dated 4.2.2009, the appellant approached this Court by filing a writ petition in W.P.No.7508/2009 wherein the petitioner has questioned the order dated 2.7.2001 (Annexure-"E"), 7.2.2002(Annexure-"G"), 4.2.2009(Annexure-"L") and sought for a direction to the respondent Nos.1 to 3 to place her in the original cadre namely Accountant-cum- clerk. On 20.9.2011, the aforesaid writ petition was partly allowed while rejecting the appellant's prayer insofar as challenge to Annexures-"E, G and L" Insofar as Annexure-H dated 17.7.2002 is concerned the order 6 is quashed to the extent of effecting recovery of the excess pay from the monthly salary of the appellant and for its remittance to the Government. The appellant aggrieved by the order dated 20.9.2011 passed in W.P.No.7508/2009 has preferred the above appeal.
3. The learned counsel for the appellant submitted that the order of the learned Single Judge insofar as rejecting the writ petition with respect to consideration of the appellant's services as a FDA is opposed to law and on the facts of the case. It was contended that as on the date of her appointment and on the date of approval of her appointment students' strength was 170. Further contended that merely because appointment of Smt. Kanmani to the post of SDA was not approved for aid the appellant's appointment could not have been cancelled by the third respondent. It was also submitted that the appellant fulfills all the required qualification for the post of 7 Accountant-cum-Clerk therefore, canceling her appointment to the post of Accountant-cum-clerk is arbitrary and further action in posting her as a Second Division Clerk and so also order of recovery of excess payment are not in order.
4. The learned Government Advocate submitted that by oversight the third respondent has approved the appointment of the appellant in the cadre of accountant-cum-clerk. Consequently, the third respondent has taken the decision to withdraw the approval of appointment of the appellant and it has been rectified by approving aid to the appointment of Smt. Kanmani with reference to staff pattern and criteria to fill up the posts. The learned Single Judge framed point for consideration which are as follows:-
"7. The points for consideration are:
1. Whether the order passed by the 2nd respondent dated 04.02.2009 (Annexure-L) suffers from any infirmity?8
2. Whether the 3rd respondent was justified in directing recovery of the excess salary paid to the petitioner?"
After due examination of the factual aspects, it is seen that it is a mistake on the part of the fourth respondent institution in appointing the appellant as Accountant- cum-clerk ignoring the fact that under what circumstances such a post is to be filled up like cadre strength of the students existing on particular point of time. In the present case, the post of Accountant-cum- clerk can be filled up provided if the students' strength is more than 250, whereas on the date of appellant's appointment students' strength was only 170. In the absence of such students' strength the fourth respondent has appointed the appellant. Consequently, the third respondent has approved the order of appointment while sidetracking the staff pattern and mode of appointment to the post of accountant-cum- clerk. It is a sheer mistake in appointing the appellant as a Accountant-cum-clerk, which is contrary to the 9 scheme of appointment of staff in the aided institutions. Thus, the learned single Judge quashed the orders at Annexure-E, G and L to the writ petition. However, insofar as Annexure-"H" was concerned, quashed the portion of the order i.e. effecting recovery of the excess pay from the monthly salary of the appellant and for its remittance to the Government.
5. In this appeal, the appellant's counsel submitted that cancellation of the appellant's appointment was in order to accommodate Smt. Kanmani, who was appointed as SDA and whose appointment was not approved for aid.
6. Per contra, the learned Government Advocate submitted that the fourth respondent was required to fill up second division Assistant post having regard to the recruitment of staff in the aided institution with reference to the students' strength. In fact the appellant's appointment itself is contrary to the scheme 10 of appointment in the aided institution. Instead of terminating her service she has been accommodated in a SDA post on sympathy. Further, the petitioner's counsel submitted that the appellant is entitled for the post of First division assistant having regard to the qualification of the appellant. It is to be noted that merely because a person is more qualified he/she cannot be appointed or adjusted to a higher post in the absence of provision to fill up such higher post. The posts in the aided institutions are required to be filled up in accordance with the staff pattern issued by the State Government.
7. Having regard to the facts of the case read with the Staff Pattern Scheme the appellant has not made out a case so as to seek direction to accommodate her in the post of First division assistant or equivalent post. There is absolutely no error in the order of the 11 learned Single Judge. Accordingly, the appeal is rejected. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE *alb/-.