Karnataka High Court
Sri. Rajendra vs The Director Of on 28 July, 2017
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 28 T H DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
WRIT PETITION NO. 102110/2016 (S- RES)
BETWEEN:
SRI RAJENDRA
S/O SINGADEPPA MAYANNAVAR
AGE: 55 YEARS , OCC: ATTENDER,
R/O C/O GANDHI HINDI HIGH SCHO OL,
KAMANAKATTI, DH ARWAD.
... PETITIONER
(BY SRI ROHIT S PATIL, ADVOCA TE.)
AND:
1. THE DIRECTOR OF
PUBLIC INS TRUCTIONS
(SECRETARY EDU CATION)
R/O NEW PUBLIC OFFICERS ,
K.R. CIRCLE, BENGALURU.
2. THE DEPU TY DIRECTOR OF
PUBLIC INS TRUCTIONS,
BENGALURU NOORTH DIS TRICT,
BENGALURU.
3. KARNATAKA HINDI HIGH SCHOOL,
AVENUE ROAD, BENGALURU.
REPRESENTED BY ITS SECRETARY,
2
DAKSHINA BHARAT HINDI PRACHAR SABHA,
KARNATAKA BRANCH, D.C. COOMPOUND,
DHARWAD.
... RESPONDENTS
(BY SRI M.KUMAR, ADDL. GOVERNM ENT ADVOCA TE,
FOR R.1 AND 2;
R.3 - NO TICE S ERVED.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITU TION OF INDIA PRAYING TO
QUASH THE ORDER NO.ANU 5(1716) IN
W.P.NO.63299/2012/191 DA TED 29.04.2013 VIDE
ANNEXURE-P ISSU ED BY THE RESPONDENT NO.2 AND
TO DIRECT THE RESPONDENT TO PAY THE SALARY
FOR THE PERIOD FROM 01.04.2004 TO 24.09.2008,
ETC.,.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING B-GROUP, THIS DAY, TH E
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned Addl. Government Advocate for the respondents No.1 and 2. The 3 r d respondent remained absent in spite of service of notice.
2. It is the contention of the petitioner that he had been working as a Lab Attender in 3 r d respondent institution at Avenue Road, 3 Bengaluru. Subsequently due to the de-recognition of that particular institution, the Government appears to have directed the 3rd respondent i.e., Dakshina Bharat Hindi Prachar Sabha to reallocate the petitioner in any other aided institution run by the said institution. Even after the said order the respondent No.3 continued the petitioner in their institution from 1.4.2004 to 9.5.2005 at Bengaluru. Subsequently reallocation was made, by posting the petitioner from 9.5.2005 in Dakshina Bharat Hindi Prachar Sabha, Karnataka Branch, D.C.Compound, Dharwad. Since 9.5.2005 the petitioner has been working in the 3rd respondent institution at Dharwad.
3. It appears, he made a representation claiming arrears of salary from 1.4.2004 to 24.9.2008 and made a representation to the 2 n d respondent Deputy Director of Public Instruction, 4 Bengaluru North District, Bengaluru, explaining the above said factual aspects and for release of the salary for the said period. The 2 n d respondent has issued an endorsement as per Annexure-P dated 29.4.2013. The said endorsement was issued in obedience to the order passed by this Court in W.P.No.63299/2012 dated 26.11.2012.
4. It is the contention of the Government i.e., the 2 n d respondent that from 1.4.2004 to 24.9.2008 the petitioner did not work in any of the institutions. Therefore he is not entitled for the remedy.
5. In this context the learned counsel for the petitioner relied upon a ruling of the Supreme Court reported in (2014) 14 SCC 375 between the S tate of Bihar vs. Kripa Nand S ingh, wherein the Apex Court has held as follows:
Service - Pay f or waiting per iod - Entitlement theref ore - Present appeal 5 f iled against order d irecting Appellan t/S tate to pay salary to Respondent as he was not able to join on account of def ect in order of tr ansf er - Whether Respondent was entitled f or salary of waiting period where he could not join duty on account of non- availability of vacant post - Held, Respondent had not joined duty as per letter of appoin tmen t - When Respondent's appointmen t was not accepted, he should have brought matter to higher au thorities but nothing was done by him - Respondent d id not make any ser ious attemp t bef ore any author ity seeking permission to join duty in any other place - Respondent waited for f ive years f or order to join duty in other place which sho wed his f ault - Hence, Respondent was not entitled f or period as such per iod was not compulsory waiting per iod but voluntary waiting per iod - Impugned order set aside - Appeal dismissed.6
6. In view of this decision, the learned counsel submitted that either the Government or the management have to take the responsibility to pay the salary of the petitioner, because it is the delay occurred only due to the mistake on the part of the 3rd respondent and as well as the Government in not providing any post in any of the aided institution of the 3 r d respondent in spite of bringing it to the notice of the 2 n d and 3 r d respondents regarding the vacancy position.
7. In view of the above said submissions of the learned counsel, this Court is of the opinion that an opportunity should be given to the 2 n d and 3 r d respondents to reconsider the representation of the petitioner in the light of the decision of the Apex Court as noted above.
8. Hence the writ petition is allowed. The order passed by the 2nd respondent dated 29.4.2013 as per Annexure-P is hereby quashed. 7 The respondents No.1 to 3 are hereby directed to reconsider the representation of the petitioner afresh in the light of the above said observation and as well as the decision of the Apex Court and pass appropriate orders, in accordance with law, within two months from the date of receipt of a copy of this order.
9. The petitioner is hereby directed to make one more fresh representation within one week from the date of receipt of a copy of this order along with a copy of the judgment of the Apex Court reported in (2014) 14 SCC 375 between the S tate of Bihar vs. Kripa Nand S ingh.
Sd/-
JUDGE Mrk/-