The Karnataka High Court allowed a writ petition filed under Article 226 of the Constitution of India, praying to call for the entire records pertaining to the case of the petitioner and quash the order dated 31.10.2011 in the revision petition passed by the 3rd respondent.
The Court observed that irrespective of the approval of the salary grants, the Management is required to pay the salaries and for the purpose of seniority, the date of initial entry into service would be the only relevant factor.
Brief Facts:
An order of transfer was made on 19.08.2011, by which respondent No.5 was transferred to another aided school from respondent No.4 – School. This order was challenged by respondent No.5 by filing a revision petition under Section 131 of the Karnataka Education Act, 1983 before the Commissioner for Public Instruction. Respondent No.5 had been transferred on the ground that she had been identified as a surplus Teacher and she was, therefore, required to be accommodated, through counseling, to another aided institution to preserve her service and other financial benefits. The contention of respondent No.5 before the Revisional Authority was that the declaration of surplus teacher was based on the seniority list and though she was senior in rank, the Management had shown her to be a junior, and as a consequence, she has been subjected to an order of transfer. Respondent No.4 — the institution ― proceeded to publish a seniority list in which the petitioner was placed in a rank junior to that of respondent No.5.
The Court noted that the Management appears to have taken the view that since the approval of the petitioner and respondent No.5 was on the same day i.e., on 27.04.1998, the date of birth of the petitioner and respondent No.5 would be the appropriate factor in considering their inter se seniority.
The Court observed that the present matter is to be considered on the application of the Seniority Rule that if two applicants are appointed on the same day, then the respective dates of birth of the candidates would be the determinative factor for reckoning their inter se seniority. However, this principle cannot be applied to the date of approval granted by the authorities for admitting the post for salary grants. Irrespective of the approval of the salary grants, the Management is required to pay the salaries and for the purpose of seniority, the date of initial entry into service would be the only relevant factor.
The Court said that the petitioner was admittedly appointed on 21.07.1997 i.e., five months prior to respondent No.5 who was appointed on 01.12.1997; it is clear that the petitioner would be senior to respondent No.5, and consequently, the assignment of the seniority to respondent No.5 above the petitioner under Annexure ‘E’ cannot be sustained.
The decision of the Court:
The Karnataka High Court, allowing the petition, held that the seniority list dated 21.01.2012 showing respondent No.5 as senior to the petitioner is quashed, and the petitioner shall be assigned a ranking No.6 which has been assigned to respondent No.5 and respondent No.5 shall be assigned ranking No.7, as a consequence of which, respondent No.5 shall be considered as junior to the petitioner.
Case Title: Smt. Nishath Mumtaz vs State of Karnataka & Ors.
Coram: Hon’ble Justice N S Sanjay Gowda
Case no.: WRIT PETITION NO.20220 OF 2021 (GM-CPC)
Advocate for the Petitioner: Mr. M. Subramanya Bhat
Advocate for the Respondents: Mr. B. Ravindranath
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