Karnataka High Court
Shri.Christanand S/O.Bhaskar Pisse vs The State Of Karnataka on 11 December, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
W.P.No.112336/2019 (S-TR)
C/W W.P.No.147473/2020
IN W.P.NO.112336/2019
BETWEEN:
SRI.JAIRANGANATHA B.S. S/O B. SHARANAPPA
AGE: 47 YEARS, OCC: ASSISTANT TEACHER,
R/O: JANATA VIDYALAYA, MUDAGA, TQ: KARWAR,
DIST: UTTARA KANNADA-581324.
.. PETITIONER
(BY SRI.S.SREEVATSA, SENIOR COUNSEL FOR
SRI.K.H.BAGI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
PRIMARY and SECONDARY
EDUCATION DEPARTMENT,
M.S. BUILDING, BENGALURU-560001.
2. THE DIRECTOR
PRIMARY and SECONDARY EDUCATION DEPARTMENT,
NRAPATUNGA ROAD,
BENGALURU-560001.
3. THE ADDL. COMMISSIONER
PUBLIC INSTRUCTION and
EDUCATION DEPARTMENT,
2
(SECONDARY EDUCATION),
DHARWAD, DIST: DHARWAD-01.
4. THE DIRECTOR I/C,
OFFICE OF PUBLIC INSTRUCTION and
EDUCATION DEPARTMENT, DHARWAD-01.
5. KENARA WELFARE TRUST
REPT. BY ITS SECRETARY,
ANKOLA, TQ: KARWR, DIST: U.K.-581324.
6. THE DEPUTY DIRECTOR KARWAR
THE PUBLIC INSTRUCTION and
EDUCATION DEPARTMENT,
U.K. KARWAR, DIST: U.K.-581324.
7. THE BLOCK EDUCATION OFFICER
KARWAR, DIST: U.K.-581324.
8. SRI.KRISTANAND BHASKAR PISSE,
AGE: 43 YEARS, OCC: ASST. TEACHER,
R/O JANATA VIDYALAYA BAD KAGAL, TQ.KUMTA.
DIST: U.K.
.. RESPONDENTS
(BY SRI.SHIVAPRABHU S.HIREMATH, AGA FOR R1-R4, R6, R7,
SRI.ANANT HEGDE, ADV. FOR R5,
SMT.VEENA HEGDE, ADV. FOR R R8)
THIS PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI
OR DIRECTIONS OR ORDER OR QUASHING THE IMPUGNED ORDER
PASSED BY THE 4TH RESPONDENT DATED 26.07.2019 VIDE
ANNEXURE-K IN No.J7:Sha.Sha.A:Varga:Viva:02: 2019-20 IN SO FAR
AS PETITIONER CONCERNED AT SL.NO.6, BY ALLOWING THIS WRIT
PETITION.
3
IN W.P.No.147473/2020
BETWEEN:
SHRI.CHRISTANAND S/O.BHASKAR PISSE
AGE : 53 YEARS, OCC : ASST.TEACHER,
RESIDING KUMATA, KUMATA TALUK : HUBLI
UTTAR KANNADA DISTRICT.
.. PETITIONER
(BY SRI.MANJUNATH A.KARIGANNAVAR, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRL.SECRETARY,
DEPARTMENT OF PRIMARY and SECONDARY EDUCATION,
M.S.BUILDING, BENGALURU
2. THE COMMISSIONER
DEPARTMENT OF PUBLIC INSTRUCTIONS,
NRUPATUNGA ROAD, BENGALURU
3. THE ADDITIONAL COMMISSIONER
DEPARTMENT OF PUBLIC INSTRUCTIONS,
DHARWAD
4. THE DEPUTY DIRECTOR
DEPARTMENT OF PUBLIC INSTRUCTIONS,
UTTARA KANNADA DISTRICT
UTTAR KANNADA
5. THE BLOCK EDUCATION OFFICER
DEPARTMENT OF PUBLIC INSTRUCTIONS, KUMATA
6. JANATHA VIDYALAY
BADA-KAGAL KUMATA, TQ : KUMATA,
REPRESENTED BY ITS HEAD MASTER.
7. KENARA WELFARE TRUST (REGD).
JANATHA EDUCATION INSTITUTIONS,
UTTAR KANNADA,
REPRESENTED BY ITS SECRETARY
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8. SRI.JAIRANGANATH B.S.S/O.B.SHARANAPP
AGE : 47 YEARS, OCC : ASST.TEACHER,
R/O : JANATHA VIDYALAYA,
MUDAGA, KARWAR TALUK,
UTTAR KANNADA DISTRICT.
.. RESPONDENTS
(BY SRI.SHIVAPRABHU S.HIREMATH, AGA FOR R1-R5,
SRI.ANANT HEGDE, ADV. FOR R6 & R7,
SRI.K.H.BAGI, ADV. FOR R8)
THIS PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI
OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION
QUASHING THE TRANSFER ORDER BEARING
No.J7:shashi:A;Varga:viva:02:2019-20 on 26.07.2019 VIDE
ANNEXURE-C.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 06.11.2020 COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is assailing the order passed by respondent No.4 dated 26.07.2019 vide Annexure-K, this writ petition is filed.
2. Brief facts of the case of the petitioner are that, petitioner is working as Assistant Science Teacher in Janata Vidyalaya High School managed by the Kenara Welfare Trust-respondent No.5. Respondent No.2 issued Circular 5 for transfer of the aided school teacher/non-teaching staff for the year 2019-20 on 22.03.2019. Respondent No.5- Institution has sent a proposal of transfer to respondent No.3 insofar as the petitioner at Sl.No.6 is concerned without being any valid reasons and the petitioner has never requested for transfer. The proposal is totally politically motivated and biased. The petitioner submitted an application to respondent No.3 requesting not to transfer from Mudaga to Kagal on 25.04.2019 and also made request that the petitioner is President of Employees Association of Karwar Taluk and other reasons.
3. The petitioner's wife Smt.Nagaratna has made an application on 25.04.2019 to respondent No.3 requesting that, since she is working as Head Mistress in Educare English Medium School in the same taluka, she requested respondent No.3 not to transfer the petitioner. The petitioner has two daughters, one studying in SSLC in Karwar taluk and another daughter studying in First B.Sc. 6 in Karwar. Hence, on the said grounds, the petitioner requested not to transfer.
4. Respondent No.1 issued a Gazette notification for transfer of teachers of Primary and Secondary of Education Department on 07.09.2017. Respondent Nos.3 and 4 without looking into the Circular and transfer guidelines/Gazette notification has passed an order of transfer of the petitioner. Hence, the petitioner aggrieved by the order of transfer filed this writ petition.
5. Respondent-State filed statement of objections stating that respondent No.5-Institution running several schools and colleges in the district of Uttar Kannada in Karnataka State. There are as many as 17 High Schools in different talukas of the district. Out of this, 15 High Schools are aided schools coming within the grant-in-aid code prescribed by the Government of Karnataka. The appointments, tenure and service conditions of teachers 7 are regulated by the provisions of grant-in-aid code and also by the Karnataka Education Act. As per the provisions of grant-in-aid code, the services of the teachers are liable to be transferred from one aided school to another one with the prior approval of the Education Department. Further, the transfers are made for educational, administrative and other appropriate reasons. The transfer proceeding is an incident of service and cannot be challenged on extraneous grounds. It is further pleaded that petitioner has got alternative remedy. The petitioner is working as an Assistant Teacher under the management of Canara Welfare Trust since last 20 years. As per Rule 12 of the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Aided Colleges of Education and Teachers' Training Institutions) Rules, 2001, the transfer of employees from one aided institution to another aided institution can be permitted by 8 the competent authority subject to the conditions prescribed.
6. Respondent No.5-Institution proposed for the transfer of petitioner along with other teaching staff, the competent authority passed an order in July 2019. The petitioner was transferred from Mudaga to Baadkagal a distance of about 55 kms in Kumta taluk. The Government has issued Circular dated 22.03.2019 prescribing the time limit for submitting the proposal of transfer of teachers. In the said Circular it is made clear that the proposal for transfer is required to be submitted by the institutions before 25.03.2019. As per the said Circular, respondent No.5-Institution has submitted the proposal for transfer of 9 teachers. The proposal submitted by respondent No.5- Institution is in accordance with the Rules and Regulations. Hence, on the said grounds respondent-State prays to dismiss the writ petitions.
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7. Respondent No.5-Institution has reiterated the statement of objections filed by the respondent-State.
8. Heard learned Senior Counsel Sri.S.Sreevatsa appearing for the petitioner, Sri.Shivaprabhu S.Hiremath, learned Additional Government Advocate for the State, Sri.Anant Hegde, learned counsel for respondent No.5 and Smt.Veena Hegde, learned counsel for respondent No.8 and petitioner in W.P.No.147473/2020.
9. Learned Senior Counsel Sri.Sreevatsa appearing for the petitioner in W.P.No.112336/2019 submits that, petitioner is working under respondent No.5-Institution and as per the Circular issued on 22.03.2019 provides for transferring teaching and non-teaching staff. He further submits that the application was filed within the stipulated time as mentioned in the Circular. Respondent No.5- Institution forwarded the application for transfer on 23.03.2019. The application filed by respondent No.5- 10 Institution is not in accordance with the conditions laid down in Circular dated 22.03.2019. He further submits that impugned order suffers from lack of jurisdiction, as the order has been passed by the Director Incharge and Director is also appellate authority and question of approaching the same authority under Section 131 of the Karnataka Education Act, 1983 may not arise. In view of the order passed by the appellate authority, the writ petition filed by the petitioner is maintainable. He further submits that as per Section 130 of the Karnataka Education Act, the aggrieved person can file an appeal and as far as Section 131 is concerned, revision can be filed by the person interested. He further submits that the application submitted by respondent No.5-Institution is beyond time. Hence, he prays to allow the writ petition.
10. Per contra, learned counsel appearing for respondent No.5-Institution submits that Circular was issued on 22.03.2019 as per Annexure-A. He draws 11 attention of this Court in the last paragraph regarding special note.
"«±ÉõÀ ¸ÀÆZÀ£É:- ZÀÄ£ÁªÀuÁ ¤Ãw ¸ÀA»vÀ eÁjAiÀÄ°ègÀĪÀÅzÀjAzÀ ZÀÄ£ÁªÀuÁ ªÀiÁzÀj ¤Ãw ¸ÀA»vÉ ªÀÄÄVzÀ £ÀAvÀgÀ CAwªÀÄ DzÉñÀ ºÉÆgÀr¸À¯ÁUÀĪÀÅzÀÄ."
He further submits that institution has filed an application well within the time and the authority has passed the order in accordance with law. He further submits that because of negligence of competent authorities respondent No.5- institution should not be made to suffer. He further submits that, petitioner is working in respondent No.5-institution for more than 17 years in the same place. He further submits that petitioner has not made out ground regarding malafides for transferring the petitioner. He relies upon the judgment of this Court in the case of S.G.Krishnamurthy Vs Vokkaligara Sangha and Another reported in ILR 2003 KAR 1931. He submits that, in case if the petitioner is aggrieved by the order passed by the Director, the 12 petitioner has got remedy under Section 132 of the Karnataka Education Act and the petitioner can seek review under Section 132 of the Karnataka Education Act. He further relies upon the judgment of the Apex Court in the case of in the case of National Hydroelectric Power Corporation Ltd Vs Shri Bhagwan and Shiv Prakash reported in (2001) 8 Supreme Court Cases 574 and also the judgment of the Apex Court in the case of N.K.Singh Vs Union of India and Others reported in (1994) 6 Supreme Court Cases 98. Hence, he prays to dismiss the writ petitions.
11. Per contra, learned AGA submits that Director is the competent authority to pass the transfer order. He placed reliance on the Circular dated 22.03.2019 as per Annexure-A and submits that the Director is the competent person to pass the order of transfer. He further submits that petitioner has got an alternative remedy. Hence, he submits that the petitions are not maintainable. 13
12. Learned Senior Counsel appearing for the petitioner in reply to the arguments advanced by the learned counsel for the respondents submits that, code of conduct came to an end on 17.05.2019. He further submits that the application filed by respondent No.5 came to be rejected on 24.05.2019. Therefore, the application filed on 11.07.2019 by respondent No.5 belatedly and respondent No.2 ought to have rejected the application filed by respondent No.5.
13. Learned counsel appearing for the petitioner in W.P.No.147473/2020 submits that, as per the order dated 27.09.2019 petitioner filed an application seeking to implead the proposed respondent in the writ petition in W.P.No.112336/2019. The said application was allowed and if any order is passed that will affect the rights of respondent No.8. She further submits that respondent No.8 has not colluded with the petitioner. Respondent No.8 has got difficulties and if respondent No.8 is transferred, the 14 family of respondent No.8 will suffer. Hence, she submits that writ petition be allowed.
14. Perused the records and also considered the submissions made by the learned counsel for the parties.
15. Petitioner is working as Assistant Teacher in Janata Vidyalaya, Mudaga, Taluk Karwar and respondent No.8 and petitioner in W.P.No.147473/2020 is working as Assistant Teacher in Janata Vidyalaya, Baad-Kagal, Kumata Taluk. Respondent No.2 has issued a Circular dated 22.03.2019 and as per the said Circular, the management has to forward a list of proposed teachers/non-teaching staff for transfer within 25.04.2019. In the said Circular, it is also mentioned that respondent No.2-authority has to take a final decision on 25.05.2020. Pursuant to the said Circular, respondent No.5-Institution has sent a proposal of list of 9 teachers for transfer on 23.03.2019. Respondent No.2 has rejected the proposal sent by respondent No.5- 15 Institution vide order dated 24.05.2019. Thereafter, respondent No.5-Institution re-submitted the list of transfer on 11.07.2020 after conclusion of election process. Respondent No.2 has approved the said list vide order dated 20.07.2019. In the impugned order at Sl.No.10 there is a reference about rejection of list of proposal earlier sent by respondent No5-Institution and also there is a reference at Sl.No.11 that respondent No.5-Institution has resubmitted the list. Once respondent has rejected the proposal sent by respondent No.5-Institution, respondent No.2 has no right to accept the list of transfer of 9 teachers after expiry of time prescribed in Annexure-A. The action of respondent No.5-Institution in sending a proposal to respondent No.2 at belated stage is in violation of conditions mentioned in the Circular, i.e., Annexure-A and also action of respondent No.2 in approving the list sent by respondent No.5-Institution is also violation of Circular dated 22.03.2019.
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16. Thus, the impugned order passed by respondent No.2 is in violation of Circular dated 22.03.2019. The said impugned order is liable to be set aside on the ground of violation of Circular dated 22.03.2019.
17. The learned counsel for the respondents submits that the petitioner has got an alternative remedy under Section 130 of the Karnataka Education Act, 1983. As far as alternative remedy is concerned, it is relevant to consider Rule 3 of The Karnataka State Civil Services (Regulations of Transfer of Teachers) Rules, 2017. As per Rule 3, the Director of Pre-University Education Department is competent authority, the Transfer Process Controlling Officer for transfer of categories of teachers. The appellate authority is the Director of Primary and Secondary Education Department. The appellate authority has passed the impugned order. When the appellate authority itself has passed the impugned order then appeal does not lie before the same authority.
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18. Alternative remedy does not operate as a bar to the exercise of a writ Court's jurisdiction of judicial review. I would like to place reliance on the judgment of the Hon'ble Apex Court in the case of M.P.State Agro Industries Development Cropn. Ltd. and Another Vs Jahan Khan reported in (2007) 10 Supreme Court Cases 88, wherein the Hon'ble Apex Court held that, the rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ Court may still exercise its discretionary jurisdiction of judicial review.
19. Hence, the contention of the learned counsel for the respondents that writ petitions are not maintainable for want of alternative remedy on the ground that petitioners without exhausting alternative remedy cannot maintain a writ petitions is rejected.
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20. In view of the above discussion, both the petitions are allowed. The impugned order dated 26.07.2019 passed by respondent No.4 is set aside.
Sd/-
JUDGE MBS/-