Karnataka High Court
Sri Shekhar H Salimani vs The Principal Secretary on 2 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 105369 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.105369 OF 2021(S-R)
BETWEEN:
1. SRI SHEKHAR H SALIMANI S/O. HANAMAPPA,
OCCUPATION HEAD MASTER(RETIRED),
SHREE K.V. SHANTHAGIRIMATH HIGH SCHOOL
RON, RON TALUK, GADAG DIST - 582 209,
R/O: DOOR NO. 220, 1ST FLOOR,
GAMANAGATTI ROAD, SHIVANANDNAGAR,
NAVANAGAR, HUBBALLI - 580 025.
SINCE DEAD BY HIS LRS.
A. SMT. SHNATHA S. SALIMANI,
W/O. LATE SHEKHAR H. SALIMANI,
AGED ABOUT 58 YEARS.
B. SRI AVINASH S. SALIMANI,
S/O. LATE SHEKHAR H. SALIMANI,
AGED ABOUT 35 YEARS.
Digitally signed
C. SRI AKASH S. SALIMANI,
by V N BADIGER
Location: High
S/O. LATE SHEKHAR H. SALIMANI,
Court of
Karnataka
AGED ABOUT 33 YEARS.
D. SMT. PRIAYNKA S. SALIMANI,
S/O. LATE SHEKHAR H. SALIMANI,
AGED ABOUT 31 YEARS.
ALL ARE R/O NO.220, SHANTHI PRIYA
NILAYA, SHIVANANDNAGAR,
GAMANAGATTI ROAD, 2ND CROSS,
NAVANAGAR, HUBBALLI - 580 025.
...PETITIONER
(BY SRI SUNILKUMAR BANGARI, ADVOCATE)
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NC: 2024:KHC-D:9010
WP No. 105369 of 2021
AND:
1. THE PRINCIPAL SECRETARY,
TO THE GOVERNMENT KARNATAKA
SECRETARIAT DEPARTMENT OF EDUCATION,
(PRIMARY AND SECONDARY),
6TH FLOOR, 2ND GATE, M.S. BUILDING,
BENGALURU - 560 001.
2. THE ADDITIONAL COMMISSIONER,
OFFICE OF THE COMMISSIONER,
FOR PUBLIC INSTRUCTION,
DIET CAMPUS, KCD ROAD,
DHARWAD - 580 008.
3. THE DEPUTY DIRECTOR,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
GADAG DISTRICT MINI VIDHANA SOUDHA
HUBLI ROAD, GADAG - 582 103.
4. THE BLOCK EDUCATION OFFICER(BEO),
DEPARTMENT OF PUBLIC INSTRUCTIONS,
RON TALUK, GADAG DIST - 582 209.
5. THE CHAIRMAN, SRI SIDRAMESHWAR
VIDYAVARDHAKA SAMSTHE,
BAGALKOTE C/O SHREE SHIVANANDNAGAR
EXTNSION, RON, GADAG DISTRICT - 582 209.
...RESPONDENTS
(BY SRI P.N.HATTI, HCGP FOR R1 TO R4;
NOTICE TO R5 IS SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI
TO QUASH THE IMPUGNED ORDER PASSED BY THE RESPONDENT
NO.1 DATED 30/07/2021 IN REVISION PETITION NO.03/2021
(ED/02/SOH/2021) PRODUCED VIDE ANNEXURE-G AND ETC.,
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WP No. 105369 of 2021
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is filed by the original petitioner Sri.Shekhar H Salimani aggrieved by the order dated 30.07.2021 passed by the respondent No.1 in revision petition No.3/2021 as per Annexure-G seeking the following reliefs:
"(a) Issue writ of certiorari to quash the impugned order passed by the respondent no.1 dated 30/07/2021 in revision petition no.03/2021 (ED/02/SOH/2021) produced vide ANNEXURE-G.
(b) Issue writ of certiorari to quash the impugned order passed by the respondent no.2 dated 23/11/2020) (02/11/2020) in appeal no.03/2019-
20 produced vide ANNEXURE-F.
(c) Issue writ of certiorari to quash the impugned approval letter accepting the reducing petitioner's basic pay of scale reducing to Rs.800/- pm from basic pay of scale of Rs. 1050-1950 pm with retrospective effect from 01.08.1986 by the 3rd Respondent vide letter dated 14/08/2019 bearing -4- NC: 2024:KHC-D:9010 WP No. 105369 of 2021 reference No.A2. AKhaProuSha: HM: Mu: Shi:
Vethan: 143: 2015-16 produce as annexure-D.
(d) Issue writ of certiorari to quash the impugned recommendation letter submitted by the 4th Respondent vide recommendation letter dated 21/09/2021 bearing reference no.C3/S.H.S./ NiVeMaM/ ShreeKVShamProuSha/Ro/2019-
20/756 for approval of the 3rd respondent produced vide as ANNEXURE-H.
(e) Issue writ in the nature of mandamus directing the respondent to confirm petitioner appointment as a Head master and confirm new revised pay scale of Head master and release stagnation increment withheld from 01/08/2016 to 01/08/2018 further direction against the Respondents to release Revised scale of pay to the Head master as per proposal made by the Shri Sidrameshwar Vidyavardhak Samsthe Bagalkot produced as ANNEXURE-E and further direct the Respondents to settle and pay to the petitioner his pension, pensionary benefits and other pecuniary benefits arising from the services of the petitioner forthwith."
2. The original petitioner Sri.Shekhar H.Salimani passed away, leaving behind his wife and children, who -5- NC: 2024:KHC-D:9010 WP No. 105369 of 2021 are already brought on record as petitioner No.1(A) to petitioner No.1(D).
3. Brief facts of the case are that, the petitioner was appointed directly to the post of Head Master in a newly started Sri Sharanabasaveshwar High School, Rajoor on 16.04.1985 and that his appointment was approved by the respondent No.3-DDPI vide the order dated 16.04.1985, fixing the basic pay scale to Rs.750- 1500. His pay scale was revised to Rs.1050-1950 per month on and from 04.08.1986. He also secured his increment time to time. By communication dated 30.06.2016 respondent No.2 called upon respondent No.3 to verify the case of petitioner and follow appropriate procedure in refixation of the basic pay of scale of the petitioner. Respondent No.4 refixed the pay scale reducing to Rs.800/- from the basic pay scale of Rs.1050-1950 per month and sent the same to respondent No.3 for his approval. Respondent No.3 accepted to reduce the pay scale to Rs.800/- per month. On 11.09.2019, Chairman of Sri Siddrameshwar Vidya Vardhak Sangh submitted -6- NC: 2024:KHC-D:9010 WP No. 105369 of 2021 representation to the 1st respondent. Aggrieved by the acceptance of reduction of pay scale to Rs.800/- from the basic scale of Rs.1050-1950 per month by the 3rd respondent, the petitioner preferred an appeal before the Additional Commissioner for Public Instructions and Appellate Authority at Dharwad /respondent No.2 herein in appeal No.3/2021. By that order, respondent No.2 dismissed the said appeal filed by the petitioner. The petitioner preferred a revision petitioner before the 1st respondent against the order passed by the 2nd respondent. Even the said revision petition came to be dismissed by order dated 30.07.2021.
4. That the Government of Karnataka by order dated 31.01.2001, effected amendment to Rule 3 of the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999, giving effect to the said Rules from the date of its publication.
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5. Things stood thus, respondent No.4 issued a communication dated 21.09.2021 seeking recovery of excess payment of Rs.16,06,229/- from the petitioner in 83 equal installments out of the pension fixed per month for Rs.39,100/-. Being aggrieved by the same, petitioner is before this Court.
6. Learned counsel for the petitioner taking this Court through various the documents produced along with petition submits that petitioner was appointed against the sanctioned post by following the due process and his appointment was even approved by respondent No.3 admitting him to the pay scale of Rs.750-1050 payable to the Head Master as of 1985. He submits that the said pay scale was revised and enhanced to Rs.1050-1950 and petitioner received periodical increment accordingly. That the last drawn salary of the petitioner is Rs.88,300/- that is based on the pay scale of Rs.1050-1950 per month fixed as per the statement produced at Annexure-D1.
7. Counsel for the petitioner further vehemently submit that the Government Circular relied upon by the -8- NC: 2024:KHC-D:9010 WP No. 105369 of 2021 respondent authorities to reject the representation of the petitioner was brought into effect on and from 31.01.2001 and the same was not in vogue at the time when petitioner was appointed, as such, he submits that the conditions/qualifications prescribed for the post of Head Master of School under the said Circular is not applicable. Therefore, the respondent authorities committed illegality and irregularity in revising and reducing the pay scale of the petitioner and further erred in directing recovery of excess payment. That the appellate authority and the revisional authority have not adverted to these aspects of the matter resulting in illegality and miscarriage of justice.
8. Learned counsel for the petitioner relies upon the judgment of the Apex Court in the case of State of Punjab and Others Vs.Rafiq Masih (White Washer) and Others reported in (2015)4 SCC 334.
9. Per contra, learned HCGP referring to Rule 45 of the Grand-in-Aid Code for Secondary Schools submit that the very appointment of the original petitioner to the post of Head of the Institution was illegal and the very -9- NC: 2024:KHC-D:9010 WP No. 105369 of 2021 appointment being illegal, petitioner cannot derive the benefit of the same.
10. Learned HCGP further submits that the judgment of the Apex Court in the case of Rafiq Masih (supra) relied upon by the petitioner is not applicable to the facts of the case. Hence, seeks for dismissal of the petition. He further submits that at the time of appointment of the petitioner as Head Master, he was aged just 25 years and the School was being run by his brother who stated to have passed away and thereafter the petitioner himself was running the Institution. Now upon the death of the petitioner, School is run by his legal representatives. Thus, learned HCGP submits that the malafide intent of the petitioner can be inferred from this undisputed facts and circumstances of the matter by which the petitioner had derived undue benefit and advantage of drawing the salary by illegally having been appointed to the post of Head Master contrary to provisions of Section 45 of the Act now to the Circular dated 31.01.2001.
11. Heard. Perused the records.
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12. There is no dispute of the fact that the Institution namely Sharanabasaveshwar High School, Rajoor was being run by the brother of the original petitioner at the time when he was appointed as Head Master of the School i.e., on 16.04.1985. It is also admitted that the said School was admitted to Grant-in- Aid even as on 16.04.1985.
13. Rule 45 of the Grant-in-Aid Code for Secondary Schools reads as under:
"45. "Appointment.-Applications shall be invited by advertisement by the management in respect of vacancies of more than six months duration. A copy of the advertisement shall be sent to the concerned Joint Director of the Division.
While making the appointment of the Heads of the Institution, the management should give consideration to the senior and qualified persons already working in the school or schools under the same management.
Unless the senior-most member of the staff is unsuitable for the post due to valid reasons, his claims should not be passed over. However, the Assistant
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NC: 2024:KHC-D:9010 WP No. 105369 of 2021 Master to be promoted as Head Master should be a trainee graduate with at least five years of teaching experience.
The District Deputy Directors of Public Instruction who are the Authorities competent to approve the appointment of Head Masters/Head Mistresses, appointed by the managements of Private Aided High Schools, are also competent to approve the in-charge appointments made against the posts of Head Masters/Head Mistresses in Aided High Schools and sanction the charge allowance at the rates as allowed in the case of Government Institutions.
(a) Applications will be considered by a selection committee consisting of the representatives of the Managing Committee, Head of the Institution and one Educationist nominated by the Managing committee.
The Selection Committee shall recommend a panel of names and arrange them in the order of merit in respect of each appointment and the Managing Committee shall make the appointment. If the Managing Committee make the appointment not in accordance with the order of merit they shall record the reasons in writing, subject to the approval of the Department. Preference shall be given to trained teachers. Teachers adequately qualified to teach the subject concerned shall be appointed.
(b) The salary of pensioners re-employed in aided educational institutions, if any will be regulated in accordance with the service rules prescribed by Government for such category of persons. No person
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NC: 2024:KHC-D:9010 WP No. 105369 of 2021 above the age of 60 years shall be continued or entertained.
14. Thus, the aforesaid provisions of Section 45 makes it clear that while making appointments of the Heads of the Institutions, certain aspect have to be kept in mind as provided thereunder including the teaching experience of atleast five years, before appointing to the post of Heads Master of the Institutions.
15. In the instant case, as seen at Annexure-A which is an order dated 16.04.1985 the petitioner was aged 26 years. There is nothing on record to show that the petitioner had acquired qualification as prescribed under Rule 45 extracted hereinabove to be appointed to the post of Head Master.
16. Though the approval is accorded to the appointment of the petitioner, by communication dated 30.03.2016 as per Annexure-C, the Additional Commissioner Office of the Commissioner for Public Instructions, Dharwad had instructed the Deputy Director,
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NC: 2024:KHC-D:9010 WP No. 105369 of 2021 Gadag to take action in the matter of appointment of the petitioner to the post of the Headmaster without he having had five years experience in teaching.
17. That by communication dated 14.08.2019, the Deputy Director (Administration) Public Instruction had directed the Block Education Officer (BEO), Department of Public Instructions, Ron to look into the appointment of the petitioner made on 27.08.1984 and subsequent approval granted though he did not have five years of required experience and to revise the pay-scale of the petitioner, reducing the same as found at Annexure-D1.
18. It is this order which has led to petitioner filing an appeal under Section 130 of the Education Act, 1983, before the Appellate Authority who on appreciation of the material placed on record held that the appointment of the petitioner to the post of Headmaster was contrary to the provisions of law and that his appointment to the post of Headmaster was thus, irregular and thus declined to show indulgence in the appeal and accordingly dismissed the same.
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19. Aggrieved by the same, the petitioner preferred a revision petition before the respondent-Government under Section 131 of the Act, which on re-appreciation of the material produced before it, dismissed the said revision petition upholding the order to recover the excess amount in monthly installment.
20. In view of the aforesaid provisions of law and admitted position of fact, the submission that the Rules dated 31.01.2001 are not applicable to the petitioner, cannot be countenanced. Even in the absence of said Rules dated 31.01.2001, case of the original petitioner cannot be accepted as the very Rule 45 of the Grant-in-Aid Code was in force when the original petitioner appointed and admittedly the appointment of the petitioner is contrary to said provision.
21. At any rate, what is sought to be recovered is the excess payment made to the post of Headmaster while the pay-scale in respect of Assistant Teacher is held to be payable to the petitioner.
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22. In that view of the matter, this Court do not see any grounds warranting interference. Accordingly, the petition is dismissed.
SD/-
JUDGE KGK - para 1 to 13 SMM - para 14 to till CT-ASC List No.: 1 Sl No.: 18