Karnataka High Court
The Secretary vs Smt.Sunita W/O Shivalingayya Salimath on 26 June, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:8669
WP No. 108439 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.108439 OF 2018(EDN-RES)
BETWEEN:
1. THE SECRETARY,
JANATA SEVA EDUCATION SOCIETY,
JULY NAGAR, GANGAVATHI,
DIST: KOPPAL.
2. ADMINISTRATOR,
JANATA SEVA EDUCATION SOCIETY,
JULY NAGAR, GANGAVATHI,
DIST: KOPPAL.
...PETITIONERS
(BY SRI B. SHARANABASAWA, ADVOCATE)
AND:
SMT. SUNITA W/O. SHIVALINGAYYA SALIMATH,
AGED ABOUT: 52 YEARS,
OCC: LECTURER IN KANNADA,
Digitally signed JSSS, D.ED. COLLEGE,
by V N
BADIGER JULY NAGAR, GANGAVATHI,
Location: High
Court of
DIST: KOPPAL.
Karnataka ...RESPONDENT
(BY SRI M. C. HUKKERI AND
S.D.BABALADI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI, BY QUASHING/SETTING - ASIDE THE
JUDGMENT & ORDER DATED 23.10.2018 PASSED BY THE DISTRICT
JUDGE AT KOPPAL, IN E.A.T APPEAL NO.1/2014, VIDE
ANNEXURE-"G" AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:8669
WP No. 108439 of 2018
ORDER
Petitioner-Society is before this Court aggrieved by the order dated 23.10.2018 passed in EAT Appeal No.1/2014 on the file of District Judge and Education Appellate Tribunal, Koppal (for short, hereinafter referred to as 'EAT').
2. By the said judgment the appeal filed by the respondent herein under Section 94(1) of the Karnataka Education Act, 1983 came to be allowed, granting the following relief;
"The impugned order served on the appellant dated 22.08.2014, No.-NIL- issued by respondent No.2, is declared as illegal, null and void and not operative against the appellant and it is set aside.
Respondents No.1 and 2 are hereby directed to accommodate and to continue the service of appellant in their institutions by providing alternative 'and substitute post, as appellant is found entitled to at par with post of Kannada Lecturer, considering her qualification in the institution run by them, within two months from today.-3-
NC: 2024:KHC-D:8669 WP No. 108439 of 2018 Further respondents No.1 and 2 are hereby directed to pay the financial benefits by paying requisite basic salary, which was prevailing in the year 2007 to 2012 by paying basic salary of Rs.8,825/- and revised pay scale in the month of April 2012 of Rs.17,650/- to the appellant as per the Government Notification, issued in ED/104/ SEP/2005, Bengaluru, dated 12.1.2006, to the appellant, the scale applicable to her(Lecturer in D.Ed college) till she attains the age of superannuation.
The respondents No.1 and 2 are hereby directed to comply this order, within a period of Three months, from the date of this order and to inform the appellant of appointing her to any suitable alternative post, in the institutions run by the respondents No.1 and 2 and to comply the other relief, ordered in favour of appellant, within reasonable time.
In case respondents No.1 and 2 not complied the order granted in this appeal, wherein, the appellant is at liberty get execute the order against the respondents No.1 and 2 through process of law, before competent forum."
3. Case of the petitioner-society is that it's started D.Ed. College in the year 2005 and the respondent was -4- NC: 2024:KHC-D:8669 WP No. 108439 of 2018 appointed to the post of Kannada Lecturer on 21.12.2006. The said appointment was approved by the authorities. That since there was no improvement in the admission of the students to the college, the petitioner-society resolved to close down the said course effective from 18.06.2014. Since the college was closed, by communication dated 31.07.2014 respondent was relieved from her service. Aggrieved by the said communication respondent herein preferred the above appeal and that the EAT as per the order referred to above allowed the said appeal filed by the respondent herein. Aggrieved by the same, petitioners are before this Court.
4. Learned counsel appearing for the petitioners reiterating the grounds urged in the memorandum of petition submits that; the petitioner-institution did not got sufficient opportunity to lead evidence before the EAT as such an opportunity be provided. That though there is no rule providing for appointment of respondent in any of the other institutions of the petitioner-society, the respondent was given an option to apply for any of the post in the -5- NC: 2024:KHC-D:8669 WP No. 108439 of 2018 other institutions run by the petitioner-society in view of closure of D.Ed. College and that since she did not opt for the said offer by filing necessary application, by the impugned communication she was relieved from her service.
5. That even prior to issuance of the impugned communication, two communications were issued to the respondent on 16.07.2013 and 22.07.2013, by which it was brought to the notice of the respondent that two of the teacher who were working along with the respondent were accommodated in other institutions and since the respondent had not opted the offer made by the petitioner-institution, and since there were about seven students continuing their course in the second year, till completion of their course the respondent was permitted to continue to work as a teacher. He submits since the D.Ed. course was closed and the respondent was informed about the closure, there was no requirement for conducting any enquiry or giving opportunity of being heard to the respondent. Thus, it is his submission that -6- NC: 2024:KHC-D:8669 WP No. 108439 of 2018 the EAT passed the impugned order on a completely erroneous premise of violation of principle of natural justice warranting interference.
6. Learned counsel for the petitioner-society further submits that the further direction issued by the EAT directing the petitioner-society to pay the salary to the respondent equivalent to the salary payable to the government staff and basic pay scale payable to staff of government lecturers and aided institution lecturers, is not applicable as the said notification has been set aside.
7. That though statement of objection were filed before the EAT, the respondent could not examine any witness or led any evidence. Thus, he submits that an opportunity be granted to the petitioner to present his case before the Tribunal.
8. Per contra, learned counsel for the respondent submits that the appointment of the respondent was against the sanctioned post and it was permanent and she has rendered service over seven years and that she was not given any option/opportunity to apply for the alternate -7- NC: 2024:KHC-D:8669 WP No. 108439 of 2018 post in any of the institutions of the petitioner-society as contended. That five of the employees who were working along with the respondent have been accommodated by the petitioner-society in the other institution run by the petitioner-society and the respondent has been selectively discriminated causing prejudice to her rights.
9. Learned counsel for the respondent further brings to the notice of this Court the order dated 10.04.2019 passed by this Court by which this Court directed the petitioner-society to place on record list of all institutions established by the petitioner-society, sanction strength of the employees in each of the institutions and the working strength of the employees, for the purpose of finding out the possibility of working out equities in favour of the respondent. Thus, he submits even the said order has also not been complied with.
10. In response, the learned counsel for the petitioner-society brings to the notice of this Court a memo dated 10.06.2019 filed before this Court along with copy of the resolution of Board Meeting dated 08.05.2019. -8-
NC: 2024:KHC-D:8669 WP No. 108439 of 2018 Referring to the same, learned counsel submits that since there were no vacancies available in any of the institutions run by the petitioner-society, it was unanimously resolved that the case of the respondent would be considered on humanity ground in future if there arises any vacancy.
11. The learned counsel for the respondent also fairly submits that since the petitioner-society has not furnished the records with regard to the sanction strength, actual working strength and the details of the institutions run by the petitioner-society as directed by this Court, and since the petitioner-society seeks an opportunity to produce those documents, the matter may be relegated to the EAT with a specific direction consider the documents and pass appropriate orders.
12. Submission is taken on record.
13. The admitted facts are that the respondent being employee of the petitioner-society has been relieved from her service effective from the year 2014 on the premise that D.Ed. College has been closed by the petitioner-society for want of students. It is also admitted -9- NC: 2024:KHC-D:8669 WP No. 108439 of 2018 fact that some of the teaching and non-teaching staff have been accommodated by the petitioner-society in the other institutions run by the petitioner-society.
14. The disputed facts are that the respondent was not given similar opportunity for applying for the equivalent job in any of the institutions run by the petitioner-society.
15. Further as noted above, this Court by order dated 10.04.2019, had also directed the petitioner-society herein to submit the records pertaining to the sanction strength, the working strength, and the details of the institutions run by the petitioner-society to look at the possibilities of accommodating the respondent. However, the resolution passed by petitioner-society produced with the memo dated 10.06.2019 would reveal that the petitioner-society had resolved to consider the request of the respondent at a future point in time. That EAT in its order has specifically directed the petitioner-society to provide alternate and substitute post and to pay basic salary prevalent at the relevant period. It is also on record
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NC: 2024:KHC-D:8669 WP No. 108439 of 2018 that the respondent has not led any evidence before the EAT.
16. In view of the aforesaid factual aspect of the matter, this Court is a considerable view that the matter be relegated to the EAT for the purpose of providing an opportunity to the petitioner-society to furnish records pertaining to the petitioner's management with regard to the sanction strength of employees, working strength of employees, a number of institutions working under it, and also to examine the issue with regard to the communication, if any, issued by the petitioner-society calling upon the respondent to opt for any eligible job in any of its institution.
17. The EAT shall on consideration of said documents/records and pass appropriate orders, after affording sufficient opportunities to the parties.
18. In that view of the matter, the impugned order is set aside. Matter is remitted with the directions as above. The tribunal shall dispose off the matter within
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NC: 2024:KHC-D:8669 WP No. 108439 of 2018 outer limit of three months from the date of receipt of the certified copy of this order.
19. Accordingly, petition is allowed.
20. In view of disposal of the petition, pending applications, if any, does not survive for consideration.
SD/-
JUDGE SMM/CT-ASC List No.: 1 Sl No.: 13