Karnataka High Court
H J Poornachandra vs Davangere University on 23 November, 2018
Author: Krishna S.Dixit
Bench: Krishna S Dixit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 23RD DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S DIXIT
WRIT PETITION No.13051/2016 (S-R)
C/W
WRIT PETITION Nos.33239/2016 & 51521/2016 (S-RES)
In W.P.No.13051/2016
Between:
H.J.Poornachandra,
Aged about 59 years,
S/o Late H.P.Jeevendraiah,
Working as Selection Grade Assistant
Librarian, Davangere University,
Shivagangothri, Tolahunase,
Davanagere-577 002 &
R/at Door No.4668/2, 4th Main, 7th Cross,
SS Layout ''B' Block,
Davanagere - 577 004.
... Petitioner
(By Sri. M. Nagaprasanna, Senior Advocate for
Smt. Suvarna.M.L, Advocate)
And
1. Davangere University
Shivagangothri, Tolahunase,
Davangere 577 002.
Represented by its Registrar,
2. State of Karnataka,
Represented by its Principal
Secretary to Government,
Education Department (Universities),
M.S.Buildings, Bengaluru - 560 001.
... Respondents
(By Sri. Nitin Ramesh, AGA for Sri. E.S.Indiresh, AGA for R2;
Sri. Santhosh S. Nagarale, Advocate for R1)
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This Writ Petition is filed under Article 226 of the
Constitution of India praying to call for the entire records leading
to the order dated 28/09/2015 and to quash the order dated
28/09/2015 issued by R2 at Annex-K by issue of a writ in the
nature of certiorari in so far as it pertains to the petitioner and
grant all consequential benefits.
In W.P.No.33239/2016
Between:
Dr. M. Anjanappa,
Aged about 60 years,
S/o Munirangappa,
working as Librarain (in-charge),
Bangalore University,
Jnana Bharathi,
& Residing at No.105, 2nd Cross,
University Layout, 5th stage BEML,
RR Nagar, Bengaluru - 560 098.
... Petitioner
(By Sri. M.Nagaprasanna, Senior Advocate for
Smt.Suvarna.M.L, Advocate)
And
1. Bangalore University
Jnana Bharathi,
Bengaluru - 560 056.
Represented by its Registrar,
2. State of Karnataka,
Represented by its Principal
Secretary to Government,
Education Department (Universities),
M.S. Building,
Bengaluru - 560 001.
... Respondents
(By Sri. Nitin Ramesh, AGA for Sri. E.S.Indiresh, AGA for R2;
Sri. M. Keshava Reddy, Advocate for R1)
This Writ Petition is filed under Article 226 of the
Constitution of India praying to call for the entire records leading
to the communication dated 08/06/2016 and to quash
communication dated 08/06/2016 vide Annexure-H issued by the
R-2 to the R-1 and direct the respondents to continue the services
3
of the petitioner in the university until he attains the age of 62
years i.e., up to 31/05/2018 on par with the teaching community
in the university and grant all consequential benefits and etc.
In W.P.No.51521/2016
Between:
Dr. M.K. Bhandi,
Aged about 61 years,
S/o Late Krishnappa,
Working as University Librarian,
Mangalore University,
Mangalagangothri,
Mangalore - 574 199.
... Petitioner
(By Sri. M. Nagaprasanna, Senior Advocate for
Smt. Suvarna M.L, Advocate)
And
1. Mangalore University
Mangalagangothri - 574 199.
Represented by its Registrar,
2. State of Karnataka,
By its Principal
Secretary to Government,
Education Department (Universities),
M.S.Buildings,
Bengaluru - 560 001.
... Respondents
(By Sri. V.C.Thammaiah, Advocate for R1;
Sri. Nitin Ramesh, AGA for Sri. E.S. Indiresh, AGA for
R2)
This Writ Petition is filed under Article 226 of the
Constitution of India praying to call for the entire records leading
to the communication dated 08/06/2016 and to quash the
communication dated 08/06/2016 at Annexure-N to W.P. issued
by R-2 / Government in so far as it relates to the petitioner and
direct R-1 /University from relieving the petitioner from the service
of Librarian till he attains the age of 62 years i.e., the
superannuation age of 'Teachers' in the R-1/University.
These Writ Petitions coming on for Orders this day, the
Court made the following:
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ORDER
The brief fact matrix of the case stated in these writ petitions is that the petitioners being the Assistant Librarians working in the cadre of Selection Grade in the U.G.C. Pay Scales are entitled to continue in the service of the respondent-University till they attend the age of 62 years in terms of the U.G.C. Regulations, the age of 60 years prescribed by the Karnataka State Universities Act, 2000, notwithstanding.
2. The petitioners in support of their claim for the higher age of retirement on superannuation also bank upon the State Government Order dated 27.06.1998 produced at Annexure-C to the writ petition which reads as under: "Government Order No.ED 09 UEC 98
Bangalore dated 27th June 1998 The Government are pleased to order that, Librarians working in Universities and in their constituent colleges, Government Colleges and Aided Colleges are treated as academic and (non- Vocational) Staff.
By order and in the name of the Governor of Karnataka.
Sd/-
Under Secretary to Government, Education Department".5
3. After service of notice, the respondents have entered appearance through respective counsel who oppose the writ petitions stating that the petitioners being Librarians do not fall within the definition of 'Teacher' given u/s. 2(12) of the Karnataka Universities Act, 2000; the 1998 Government Order at Annexure-C having been made under the erstwhile the Karnataka Universities Act, 1976 cannot be banked upon to expand the definition of 'Teacher' under the new Act of 2000.
4. I have heard the learned Senior Counsel Shri Nagaprasanna appearing for the learned Advocate for the petitioners on record; I have also heard the Standing Counsel for the University and the Addl. Government Advocate.
5. Going by the exhaustive definition of 'Teacher' given u/s. 2(12) of the KSU Act, 2000, the petitioners by any stretch of imagination cannot be called as the Members of the Teaching Community, which they could have been under the inclusive definition of the 'Teacher' under the repealed KSU Act, 1976. The text and context of the Government Order of 1998 at Annexure-C mentioned above which has been issued under the KSU 1976 Act which is now repealed also cannot 6 be banked upon by the petitioners without making violence to the definition of 'Teacher' under the new KSU Act, 2000.
6. The next contention of the learned Senior Counsel Shri Nagaprasanna is that irrespective of the definition of 'Teacher' under the KSU Act, 2000, the petitioners being the Librarians working in the U.G.C. Pay Scales are entitled to higher age of retirement prescribed under the U.G.C. Regulations governing the Service Conditions of the class of employees to which the petitioners belong. This contention also fails because the U.G.C. Regulations being a piece of delegated legislation cannot over-ride the KSU Act 2000 which is a State Legislation, in the case of conflict as held by the Apex Court in the case of Jagdish Prasad Sharma & Others Vs. State of Bihar and others - (2013) 8 SCC 633. Paragraph 69 of the said decision reads as under:
"69. To some extent there is an air of redundancy in the prayers made on behalf of the respondents in the submissions made regarding the applicability of the Scheme to the State and its universities, colleges and other educational institutions. The elaborate arguments advanced in regard to the powers of teachers from 62 to 65 years as a condition precedent for receiving aid from UGC, appears to have title relevance to the actual issue involved in these cases. That the Commission is empowered to frame regulations under Section 26 of the UGC Act, 1956, for the 7 promotion and coordination of university education and for the determination and maintenance of standards of teaching, examination and research, cannot be denied. The question that assumes importance is whether in the process of framing such regulations, the Commission could alter the service conditions of the employees which were entirely under the control of the States in regard to State institutions?"
7. At this stage, learned counsel appearing on either side submit that both the petitioners in W.P. No. 51521/2016 and W.P.No.33239/2016 having obtained the interim order were continued in service till they retired after attaining the age of 62 years; similarly petitioner in W.P.No.13051/2016 has been continuing and retires in a short period; all they have been paid the salary for the service rendered even after attaining the age of 60 years and therefore much of the substratum of the case has withered away.
8. Learned Senior Counsel Shri Prasanna expresses the apprehension that the salaries drawn by the petitioners for the service rendered by them after attaining the age of 60 years is threatened to be recovered and therefore some protection has to be given against the likely recovery. The learned Advocates opposing the writ petition submit that this 8 apprehension is misconceived inasmuch as no such recovery can be made for the service rendered inasmuch as the contra action, if any, would be hit by doctrine of begar enacted under Article 23 of the Constitution of India ie., taking the services without wages. This should put an end to the grievance of the petitioners in this regard.
9. The last contention of the petitioners that because of the pendency of these writ petitions, the terminal benefits of the petitioners even taking their age of retirement as 60 years have not been settled, needs to be addressed by the University. There cannot be denial of or delay in the settlement of terminal benefits to the employees who having rendered peaceful service have attained the age of superannuation. The pension not being a bounty is the property of the retirees and if there is a delay, the same needs to be deprecated vide judgment of the Apex Court in the case of State of Kerala and Others Vs. M. Padmanabhan Nair AIR (1985) 1 SCC 429.
10. The decision of the Apex Court in the case of M. Padmanabhan Nair shows its anguish when persons who 9 have peacefully retired from service are made to suffer because of delay in the settlement of terminal benefits. The observations of the Apex Court made decades ago should be an eye opener to the employers who fall within the definition of State under Article 12. Paras 3 and 5 of the said decision read as under:
"3. The instant case is a glaring instance of such culpable delay in the settlement of pension and gratuity claims due to the respondent who retired on 19.5.1973. His pension and gratuity were ultimately paid to him on 14.8.1975, i e., more than two years and 3 months-after his retirement and hence after serving lawyer's notice he filed a suit mainly to recover interest by way of liquidated damages for delayed payment. The appellants put the blame on the respondent for delayed payment on the ground that he had not produced the requisite L.P.C. (Last Pay Certificate) from the Treasury Officer under Rule 185 of the Treasury Code. But on a plain reading of Rule 186, the High Court held and in our view rightly that a duty was cast on the Treasury Officer to grant to every retiring Government servant the last pay certificate which in this case had been delayed by the concerned officer for which neither any justification nor explanation had been given The claim for interest was, therefore, rightly, decreed in respondent's favour.
5. We are also of the view that the State Government is being rightly saddled with a liability for the culpable neglect in the discharge of his duty by the District Treasury Officer who delayed the issuance of the L.P.C. but since the concerned officer had not been impleaded as a party defendant to the suit the Court is unable to hold 10 him liable for the decretal amount. It will, however, be for the State Government to consider whether the erring official should or should not be directed to compensate the Government the loss sustained by it by his culpable lapses. Such action if taken would help generate in the officials of the State Government a sense of duty towards the Government under whom they serve as also a sense of accountability to members of the public."
In the above circumstances, although the main relief sought for in the writ petitions as to the age of retirement is declined, the University is liable to settle the terminal benefits of the petitioners within an outer time limit of two months from the date a copy of this judgment is made available. The delay, if brooked, would entail the respondent-University with interest at the rate of 2% per mensum which after being paid to the petitioners shall be recoverable from the erring officials responsible for the delay.
Petitions are disposed off accordingly.
Sd/-
JUDGE Snb