Karnataka High Court
Dr. Jagadessh Basapur S/O B.Basavaraj vs The State Of Karnataka on 10 April, 2019
Author: Krishna S Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10 T H DAY OF APRIL 2019
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
WRIT PETITION Nos.110831-110838 of 2015 [S-RES]
BETWEEN
1. DR. JAGADESSH BASAPUR,
S/O. B.BASAVARAJ,
AGED ABOUT 41 YEARS,
WORKING AS ASSISTANT
PROFESSOR (PHYSICS)
KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD,
BELLARY-583103.
R/A OPP.VIDYA NIKETAN SCHOOL,
PARVATHI NAGAR, 2ND CROSS,
NEAR POLICE GYMKHANA,
BELLARY-583103.
2. SRI.MALLIKARJUNA S.,
S/O. GURUBASAVARAJA S.,
AGED ABOUT 42 YEARS,
WORKING AS ASSISTANT
PROFESSOR (MATHEMATICS),
KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD, BELLARY-583103.
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R/A. C/O. G.PARTHASARATHY,
SURVEY SUPERINTENDENT (RETD.),
NO.58/C, "SREEVARI NILAYA",
ADARSHA COLONY, CANTONMENT,
BELLARY-583103.
3. SMT.SUSHEELA SIRUR,
D/O. S.BHEEMAPPA
AGED ABOUT 52 YEARS,
WORKING AS ASSISTANT
PROFESSOR (HISTORY),
KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD, BELLARY-583103.
R/A NO.66, "VIKASA CHANDRA",
II LIND ROAD, PARAVATHI NAGAR,
BELLARY-583103.
4. SRI.JAYANNA N.G.,
S/O. GANGADHARAPPA N.M.,
AGED ABOUT 47 YEARS,
WORKING AS ASSISTANT
PROFESSOR (KANNADA),
KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD, BELLARY-583103.
R/A.B-40, PWD QUARTERS,
ESWARAGUDI ROAD, PARVATHI NAGAR,
BELLARY-583103.
5. DR.SATEESH A.HIREMATH
S/O. ANDANAYYA HIREMATH,
AGED ABOUT 42 YEARS,
WORKING AS ASSISTANT
PROFESSOR (BIOLOGY) &
INCHARGE PRINCIPAL
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KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD, BELLARY-583103.
R/A. C/O. A.H.CHINNA,
D.A.R. LANE, SATHYANARAYANAPET,
BELLARY-583102.
6. SRI VIKRAM P HIREMATH,
S/O PATTADAYYA HIREMATH,
AGED ABOUT 41 YEARS,
WORKING AS ASSISTANT
PROFESSOR (GEOGRAPHY),
KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD, BELLARY-583103.
R/A BUDIHAL, P.O.: KALAKERI,
TALUK MUNDARGI,
DIST:GADAG-582118.
7. SRI.DANAPPA S/O.BASALINGAPPA,
AGED ABOUT 42 YEARS,
WORKING AS ASSISTANT
PROFESSOR (ENGLISH),
KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD, BELLARY-583103.
R/A.HALLYAL, POST: CHINCHOLI,
TALUK AFZALPUR, DIST: KALABURAGI.
8. SRI.CHANNAVEERASWAMY C.H.M.,
S/O MANJUNATHA C.H.M.,
AGED ABOUT 41 YEARS
WORKING AS ASSISTANT
PROFESSOR (CHEMISTRY),
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KOTTURSWAMY COLLEGE OF
TEACHER EDUCATION,
Y.NAGESHSHASHTRY NAGAR,
KAPPAGAL ROAD, BELLARY-583103.
R/A "ANUGRAHA NILAYA"
OPP.DAMMUR COMPOUND
BEHIND LIONS CLUB,
KAPPAGAL ROAD, BELLARY-583103.
... PETITIONERS
(BY SHRI V.LAXMINARAYANA, SR. COUINSEL FOR SHRI
MRUTYUNJAYA S. HALLIKERI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
REP BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF EDUCATION
(HIGHER EDUCATION)
M.S. BUILDING, SACHIVALAYA,
BENGALURU-560001.
2. THE COMMISSIONER,
DEPARTMENT OF COLLEGIATE EDUCATION,
PALACE ROAD, BENGALURU.
3. THE REGIONAL JOINT DIRECTOR,
DEPARTMENT OF COLLEGIATE EDUCATION,
KALABURAGI.
4. VEERASHAIVA VIDHRAVARDHAKA SANGA,
A.S.M. COLLEGE CAMPUS, BELLARY
REP BY ITS SECRETARY.
... RESPONDENTS
(By SHri A.R. RODRIGUES, AGA FOR R1-R3;
SHRI V.M. SHEELAVANT
& SHRI VINAY S. KOUJALAGI, ADVOCATES FOR R4)
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO:
I. DIRECT THE RESPONDENTS TO RELEASE THE
SALARY IN FAVOUR OF THE PETITIONER IN
ACCORDANCE WITH THE LETTER OF THE
GOVERNMENT DATED 23.12.2014 AND LETTER
OF JOINT DIRECTOR OF DEPARTMENT OF
COLLEGIATE EDUCATION, GULBARGA DATED
23.11.2013 AND ALSO AS PER DATED
01.09.1978, VIDE ANNEXURES - T, R AND H
RESPECTIVELY;
II. DECLARE THAT NON-PAYMENT OF SALARY OF
THE PETITIONERS VIOLATES ARTICLES 39(D)
OF THE CONSTITUTION OF INDIA;
III. DIRECT TO THE RESPONDENTS TO EXTEND
ALL THE CONSEQUENTIAL BENEFITS SUCH AS
FIXATION OF SALARY FROM THE DATE OF THE
PETITIONERS JOINING AND REGULARISE
THEIR SERVICES;
IV. DIRECT THE RESPONDENTS TO EXTENT ALL
THE FINANCIAL BENEFITS, WHICH HAS BEEN
PAID TO THE TEACHERS IN THE GOVERNMENT
COLLEGE AND FURTHER DIRECTION NOT TO
DISCRIMINATE IN THE MATTER OF PAYMENT
OF SALARY OF FIXATION OF SALARY OR
EXTENDING THE FINANCIAL INCLUDING THE
RETIREMENTAL BENEFITS.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING B-GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
All these petitioners being fully qualified and eligible having been selected and appointed as lecturers in the respective discipline by the fourth respondent - Veershaiva Vidyavardhaka Sanga are before this Court, in substance for a direction to regularize their services with approval of the official respondents and to pay to them the salary in the pay scales admissible to the posts in question regardless of the text of their prayers in the pleadings.
2. After service of notice, official respondent Nos.1 to 3 have entered appearance through the learned Additional Government Advocate, Shri A.R. Rodrigues; fourth respondent - Veershaiva Vidyavardhaka Sanga has entered appearance through its panel counsel Shri V.M.Sheelavat, who has filed a brief Statement of Objections virtually supporting the case of the petitioners.
3. Learned Senior Counsel Shri V. Laxminarayana appearing for the petitioners submits that all these :7: petitioners admittedly possessing prescribed educational qualification had faced selection process and thereafter are appointed as lecturers against the existing vacancies in the posts since more than a decade ago and some of them have been serving for more than 15 years without spotless Service Records; they have been discharging their duties of the post to the full satisfaction of all; the answering respondents have to consider the proposal of the Management for approval of their appointment for the Grant in Aid; answering respondents are not justified in raising objections that in the matter of their appointment the reservations & roster were not followed in view of the Government Order dated 05.02.2015, which dilutes such a rigor.
4. Shri V. Laxminarayana further submits that the decision of the Apex Court in the case of Secretary, State of Karnataka and Ors vs. Umadevi and Ors. [(2006) 4 SCC 1] having been explained in the subsequent decisions :8: in the case of Narendra Kumar Tiwari and Ors. vs. the State of Jharkhand and Ors. [AIR 2018 SC 3589] and in the case of Union of India & Ors. vs. Central Administrative Tribunal & Ors. etc., in SLP(C) Nos.37798-37799 of 2013, disposed off on 08th January 2019 the official respondents are not justified in not approving the appointment of petitioners on regularization of their services by the fourth respondent - Veershaiva Vidyavardhaka Sanga, which the Sanga is agreeable to do as is coming out from it's Statement of Objections.
5. Shri V. Laxminarayana submits that there is no qualitative and quantitative difference between the discharge of duties of a Teacher in Private Institutions and a teacher of a Government Institutions inasmuch as both they do, the very same job; if all petitioners are appointed after selection to the existing vacancies of the sanctioned Posts, then they cannot be paid, salary lesser than would similarly circumstanced Teachers in the Government Institutions :9: drawn, in view of the provisions of Section 83 of the Karnataka Education Act, 1983 and the Rules promulgated thereunder; the Apex Court in catena of decisions has reiterated the law relating to remunerative equality i.e., "equal pay for equal work"; in view of latest decision of Apex Court in the case of Sabha Shanker Dube vs. Divisional Forest Officer & Ors in Civil Appeal Nos.10957-10963 of 2018, disposed off on 14.11.2018 the claim of the petitioners in this regard also merits due consideration at the hands of the official respondents.
6. Lastly, Shri V. Laxminarayana relying upon the Karnataka Educational Institutions (Regulations of Admission in the Hyderabad-Karnataka Region) Order, 2013, dated 06.11.2013 and 12.07.2013 and the Karnataka Public Employment (Reservation in appointment for Hyderabad-Karnataka Region) Order, 2013, dated 06.11.2013 promulgated by the Governor of Karnataka State under Article 371J of the Constitution of India : 10 : granting special status to the Hyderabad-Karnataka Area, submits that the official respondents having not adverted to paragraph 13-C in both these orders have erred in not extending their benefits to the petitioners who hail from Hyderabad Karnataka Area.
7. Learned Additional Government Advocate, Shri A.R. Rodrigues submits that the petitioners are not entitled to any relief at the hands of this Court inasmuch as the fourth respondent - Veershaiva Vidyavardhaka Sanga has made these appointments in gross violation of legal requirements and prescriptions; their selection and appointment was not followed by the due publication of the vacancies in the newspaper; it was also not preceded by prior permission of the Department; in making such appointment, the reservation and roster have not been followed by the respondent - Management. So arguing he seeks dismissal of the writ petitions.
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8. Learned panel counsel Shri V.M. Sheelvant for fourth respondent - Veershaiva Vidyavardhaka Sanga taking the Court through its Statement of Objections supported the case of petitioners stating that the objectionable stand of the respondent officials is coming in the way of grant of regularization to the petitioners and of extending the regular pay scales admissible to the Posts in question that are yet to be approved and thereafter to be admitted to the Grant in Aid.
9. I have heard the learned Senior Counsel for the petitioners, learned Additional Government Advocate for the respondent Nos.1 to 3, and the learned panel counsel for the fourth respondent. I have perused the petitions papers and the Statement of Objections filed by the fourth respondent. I have adverted to the ruling cited at the Bar.
10. All the petitioners being fully qualified and eligible came to be selected and appointed to the respective posts against the existing vacancies is not in dispute; fourth : 12 : respondent - Veershaiva Vidyavardhaka Sanga in its Statement of Objections at paragraph Nos.2 & 3 specifically stated as under:
"2. It is submitted that the petitioners are working as Assistant Professor in the respondent No.4 College as against the sanctioned posts subject to the approval of the Department. Since they are working for more than ten years, the Management has passed a resolution on 28-5-2004 to absorb them into the services as they are duly qualified.
3. ...... If there are vacancies meant for reservation policy as per the policy of the Government. If the vacancies are to be set apart to fulfil the said reservation policy, the Management has agreed to set apart those vacancies. On this condition also vacancies can be permitted to be filled up by absorbing the Writ Petitioners. Since these lecturers have gained experience and the college will be benefited in meeting the educational standards, realizing all circumstantial factors the Management has agreed to absorb them into the : 13 : services subject to the approval by the Department."
The above fair stand of the respondent Institution answers the apprehension which the official respondents may have as to the likely loss of posts earmarked for the reserved candidates under the policy of the State.
11. Objection of the official respondents to the approval and appointment of the petitioners is not otherwise also not sustainable in view of the Government Order, ¸ÀPÁðj DzÉñÀ ¸ÀASÉå: ¹D¸ÀÄE 6 ¸ÉûªÀÄ 2014, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ 5.2.2015, the relevant paragraph whereof reads as under:
"C¨sÀåyðUÀ¼À PÉÆgÀvɬÄAzÁV «ÄøÀ¯Áw ªÀUÀðUÀ¼À jPÀÛ ¸ÁÜ£ÀUÀ¼À£ÀÄß ¨sÀwð ªÀiÁqÀ¯ÁUÀzÉà G½zÀÄ ºÉÆÃzÀ ªÀÄvÀÄÛ £ÀAvÀgÀzÀ DAiÉÄÌUÀ¼À°è £ÀµÀÖªÀ£ÀÄß ¨sÀwð ªÀiÁqÀ®Ä PÉÆAqÉÆAiÀÄÄåªÀ ¥ÀæQæAiÉÄAiÀÄ£ÀÄß ªÀÄÄA¢£À 3 £ÉêÀÄPÁwUÀ¼ÀÄ CxÀªÁ UÀjµÀ× 5 PÁå¯ÉAqÀgï ªÀµÀðUÀ¼ÀªÀgÉUÉ EzÀgÀ°è AiÀiÁªÀÅzÀÄ ªÉÆzÀ¯ÉÆà C°èAiÀĪÀgÉUÉ ªÀiÁvÀæ ªÀÄÄAzÀĪÀgɸÀvÀPÀÌzÀÄÝ. ªÀÄÆgÀ£Éà £ÉêÀÄPÁwAiÀÄ°è CxÀªÁ UÀjµÀ× 5£Éà PÁå¯ÉAqÀgï ªÀµÀðzÀ CAvÀåzÀ°è AiÀiÁªÀÅzÉà «ÄøÀ¯Áw jPÀÛ ¸ÁÜ£ÀªÀÅ ºÉÆAzÁtÂPÉAiÀiÁUÀzÉà G½zÀÄPÉÆAqÀgÉ, CªÀÅ ªÀVÃðPÀgÀtªÀ£ÀÄß PÀ¼ÉzÀÄPÉƼÀÄîvÀÛªÉ ªÀÄvÀÄÛ ªÀÄÄA¢£À : 14 : £ÉêÀÄPÁw (4£Éà £ÉêÀÄPÁw) CxÀªÁ ªÀÄÄA¢£À PÁå¯ÉAqÀgï ªÀµÀðzÀ°è (DgÀ£ÉAiÀÄ) CªÀÅUÀ¼À£ÀÄß ºÉƸÀ jPÀÛ ¸ÁÜ£ÀUÀ¼ÉAzÀÄ ¥ÀjUÀt¹ gÉÆøÀÖgÀ£ÀÄß ªÀÄÄAzÀĪÀgɸÀvÀPÀÌzÀÄÝ."
The above Government Order apparently relaxes the rigor of reservation and roster, if the candidates belonging to the reserved categories are not available for recruitment in three consecutive recruitments or for a period of five years, whichever is earlier.
12. The above Government Order appears to spring from the Apex Court decision in the case of M.Nagaraj and others vs. Union of India and others reported in (2006) 8 SCC 212, wherein paragraph No.100 reads as under:
"Introduction of "time" factor in view of Article 16(4-B):
100. As stated above, Article 16(4-B) lifts the 50% cap on carry-over vacancies (backlog vacancies).
The ceiling limit of 50% on current vacancies continues to remain. In working out the carry- forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. : 15 : This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore, if the ceiling limit on the carry over of unfilled vacancies is removed, the other alternative time factor comes in and in that event, the time scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation. What is stated hereinabove is borne out by the service rules in some of the States where the carry- over rule does not extend beyond three years."
13. The official respondents ought to have borne in mind the protective discrimination provided to the "local candidates" of Hyderabad Karnataka Area like the petitioners under the ORDERS issued in terms of Article 371J of the Constitution on 06.11.2013 and 12.07.2013 : 16 : mentioned above, wherein paragraphs 13-C (in both Orders) read as under:
"13 C: Regularization of Local Candidates:
Local Candidates who have worked on daily or contract basis in Government for more than ten years prior to 1.1.2013 and fulfill conditions as prescribed may be given certain concessions in appointment and other benefits as prescribed by the Government."
"13 C: Protection and promotion of right of local candidates: Local candidates who had been appointed by the Government on local basis and who have worked for more than 10 years prior to 01-01- 2013; or local candidates who have worked on daily or contract basis in Government for more than 10 years prior to 01-01-2013 and fulfill conditions as prescribed may be given certain concessions in appointment and other benefits as prescribed by the Government."
Had the official respondents adverted to the intent and content of the above paragraphs, they would have favourably considered the case of the petitioners as recommended by the management of the respondent : 17 : institution, since the petitioners answer the definition of "local candidates" in the said Orders.
14. The contention of the counsel for the petitioners that there is no qualitative and quantitative difference between the duties discharged by the temporary employees and the permanent employees working as teachers and therefore there has to be parity of pay scales in which petitioners would draw their salaries is substantiated by the decision of the Apex Court in the case of Sabha Shanker Dube (supra). Similarly in view of decisions of the Apex Court in the case of Union of India & Ors. vs Central Administrative Tribunal & Ors (supra) the ratio in the case of Umadevi & Ors. (supra) does not come in the way of the official respondents approving the appointment of the petitioners. The reasons on which the respondents seek to justify their impugned stand wither away because of what is stated above.
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15. In the above circumstances, these writ petitions succeed in part; third respondent-Management after regularizing the services of the petitioners shall submit its proposal for approval of their appointment and further for the extension of the Grant in Aid so that the petitioners will have security of tenure and parity in pay scales; a Writ of Mandamus issues to the official respondents to consider the said proposal of the respondent Institution; the official respondents shall consider the said proposal keeping in view the observations made hereinabove and in accordance with law, within a period of three months.
It is open to the Official-respondents to solicit any information or documents from the side of the petitioners or the fourth respondent - Management as may be required for due consideration of such proposal, subject to the rider that, in the guise of such solicitation, no delay shall be brooked.
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Pending applications pale into insignificance since the main matter itself is disposed off.
No costs.
Sd/-
JUDGE Vnp*