Karnataka High Court
Sri. Basavaraj S/O Fakirappa ... vs The State Of Karnataka on 19 August, 2021
Author: B.Veerappa And Kamal
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF AUGUST 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
WRIT APPEAL NO.100816/2015 (S-RES)
Between:
Shri Basavaraj S/o.Fakirapp Kakanur,
Age 32 years, Occ: Teacher in Yachchreshwara
H.P.S. Holealur, R/o.: Somanakatti,
Tq.: Ron, Dist.: Gadag.
... Appellant
(By Shri H.M. Dharigond, Advocate)
And:
1. The State of Karnataka,
By its Principal Secretary,
Education Department
(Primary Education),
M.S. Building, Bengaluru.
2. The Commissioner,
Department of Public Instructions,
Bengaluru.
3. The Commissioner,
Department of Public Instructions,
Rodda Road, Dharwad.
:2:
4. Zilla Panchayat, Gadag,
By its Chief Executive Officer,
Gadag.
5. The Deputy Director,
Department of Public Instructions,
Gadag District, Gadag.
6. The Block Education Officer,
Ron Taluk, Dist.: Gadag.
7. Sri Yachachareshwar Balvikas Vidya Mandir,
Holealur, By its Secretary,
R/o.: Holealur, Tq.: Ron, Dist.: Gadag.
8. Sri. Mallikarjunagowda S/o.Veeranagouda,
Menasagi, Age 27 years, Occ: Teacher,
R/o.: Hullur, Tq.: Ron, Dist.: Gadag.
9. Smt. Vidhya Binnal,
Age major, Occ: Teacher,
Shri Yachchareshwar H.P.S., Holealur,
Tq.: Ron, Dist.: Gadag.
... Respondents
(By Shri G.K. Hiregoudar, GA for R1-R3, R5 & R6;
Shri Girish S.Hiremath, Advocate for R7;
Shri Sharad V.Magadum, Advocate for R8;
Shri M.M.Hiremath & Shri R.V. Kusugal, Advocate for R9
Notice to R4 held sufficient)
This Writ Appeal is filed u/s 4 of the Karnataka High
Court Act, 1961, praying to allow the appeal and set aside
the order dated 11.09.2015, passed in Writ Petition
No.64791/2009, passed by the learned Single Judge and
allow the writ petition filed by the appellant.
This appeal being heard and reserved for Judgment,
coming on for pronouncement of Judgment, this day,
M.G.S. Kamal, J, delivered the following:
:3:
JUDGMENT
1. This Intra Court Appeal is filed under Section 4 of
the Karnataka High Court Act, 1961 by the appellant-
petitioner against the order dated 11.09.2015, passed by the
learned Single Judge inW.P.No.64791/2019 (S-RES).
2. The facts leading upto filing of the present
appeal briefly stated are that respondent No.7-Institution
namely Sri Yachachareshwar Balvikas Vidya Mandir, Holealur
started a Primary School in Kannada Medium from
05.07.1989. Respondent No.7-Institution had invited
applications for appointment of three posts of teachers.
Pursuant to which the petitioner and respondent No.8 had
applied seeking appointment for the said post and had
attended the interview on 30.06.2006. That after verification
of the documents, the petitioner and respondent No.8 were
appointed for the posts of Teachers vide order dated
02.07.2006. On receipt of the aforesaid appointment order,
the petitioner joined the service of the post of Teacher on
05.07.2006, while respondent No.8 joined the post of
teacher on 07.07.2006 i.e., after two days of petitioner
joining to the duty. The appointments of the petitioner and
respondent No.8 to the post of Teacher of respondent No.7-
Institution were subject to approval by the concerned
authorities. The committee of respondent No.7-Institution
had recommended the names of the petitioner and
respondent No.8 by submitting a checklist in Form-4 on
31.07.2008 for approval from the appropriate authority.
Respondent No.7-Institution had followed and maintained
the roster system for reservation of post as per Government
norms. That the appointment of the petitioner and
respondent No.8 was approved by the Government without
grant-in-aid by its order dated 22.08.2008 issued by
respondent No.6 vide Annexure-J. As per Annexure-J, six
persons were appointed to the posts of Teachers of
respondent No.7-Institution. The name of the petitioner was
at Sl.No.3, while the name of respondent No.8 was at
Sl.No.4.
3. When things stood thus, the Government of
Karnataka, had proposed to accord grants to certain
permanently unaided schools, which were established
between 01.08.1986 to 1994-95. That the respondent No.7-
Institution having been established on 05.07.1989 and
continuously running unaided, was eligible to admit grant-in-
aid. While considering, providing grant-in-aid benefit to
respondent No.7-Institution, the Government had deleted
the name of the petitioner and had included the name of
respondent No.9 herein on the ground that respondent No.7-
Institution though had appointed seven Teachers, there was
no Physical Education Teacher, and since the petitioner was
junior in age, his name was deleted by order dated
16.07.2009 as per Annexure-K. It is this order, which the
petitioner is aggrieved of as according to the petitioner,
deletion of his name from the list was arbitrary, unilateral
and malafide and was only to accommodate respondent No.8
and respondent No.9. Hence, the petitioner filed Writ Petition
No.64791/2009 (S-RES) seeking quashing of the order dated
16.07.2009 at Annexure-K deleting his name from the list of
Teachers for Grant-in-aid of respondent No.7-Institution and
for a writ of mandamus directing the respondent authorities
to accord approval of his name in the list of Teachers of
respondent No.7-Institution for grant-in-aid.
4. Respondent Nos.1 to 3, 5 & 6 filed statement of
objections to the said writ petition contending inter alia that
respondent No.7-Institution being a selection and appointing
authority having called for applications to fill up the post of
Assistant Primary School Teachers in Kannada Medium of
instructions, after conducting interview and verification of
documents had appointed the petitioner and respondent
No.8 in the General Merit category. The appointing authority
had passed the resolution on 02.07.2006 recording
appointment of Teachers and had issued the provisional
appointment order to the selected candidates with a
condition that the said orders were subject to the approval
from the concerned Educational Department, as the
appointment of the petitioner and respondent No.8 were
prior to admit of grant-in-aid. That respondent No.7-
Institution was admitted to grant-in-aid on 16.07.2009 and
the committee had recommended for final approval of the
appointment and grant-in-aid of the petitioner and
respondent No.8 to the concerned Education Department.
That the Government of Karnataka accorded grant to certain
Primary un-aided School as per Government Order dated
06.10.2007 following the procedure and Rules under the
Karnataka Grant in Code Act. Thus, the Government by the
impugned order had accorded approval in respect of six
Teachers and the name of the petitioner was dropped as he
was junior to respondent No.8. It is further pleaded that
"principle of last come first go" was made applicable to the
facts and circumstances of the case. As such the order
passed by the respondent authority was in accordance with
law and that there was no valid and justifiable ground made
out by the petitioner warranting interference by this Court.
5. After hearing the parties, the learned Single
Judge by the impugned order even while taking note of the
submission made on behalf of the petitioner that he joined
the services on 05.07.2006 and respondent No.8 joined the
services on 07.07.2006, which is subsequent to the
petitioner joining the service, held that the petitioner joining
the services just prior to respondent No.8 is not relevant, as
admittedly both were appointed on the same day and since
respondent No.8 is elder in age, "last come first go" rule
applies and that the seniority list having been prepared on
that basis cannot be faulted. Having held thus, the learned
Single Judge proceeded to dismiss the petition. Being
aggrieved by the aforesaid order, the petitioner has filed the
present appeal.
6. Shri H.M. Dharigond, learned counsel for the
appellant reiterating the grounds urged in the appeal
submitted:
(i) That the deletion of the name of the petitioner from
the list from approval for grant-in-aid is illegal and
arbitrary and was in clear violation of the procedure
and rules.
(ii) That the petitioner and respondent No.8 were
appointed in general merit category and their
appointment was approved in the said category and
since the petitioner had joined the services on
05.07.2006 while respondent No.8 joined the services
two days later i.e., on 07.07.2006, the petitioner ought
to have been considered to be senior having got two
days of experience more than that of respondent No.8.
Therefore, the action of respondent No.1 was contrary
to the Service Rules.
(iii) That the deletion of the name of the petitioner for the
reasons that the sanctioned strength of the Teachers in
respondent No.7-Institution are seven of which one
Teacher ought to be a Physical Education Teacher and
that the petitioner being the junior could be left out is
biased and was only to accommodate respondent No.8
overlooking seniority of the petitioner.
(iv) That from the proceedings of the Government, it is
clear that the petitioner was considered eligible and
entitled to be admitted to grant-in-aid at every stage
by all concerned authorities including concerned
Hon'ble Minister and when the orders in that regard
were about to be issued, the name of the petitioner
was illegally deleted and the name of respondent No.9,
Smt. Vidhya Binnal was incorporated, which fact has
not been taken into consideration by the learned Single
Judge.
As such the impugned order passed by the learned
Single Judge is unsustainable and sought to allow the
appeal.
7. Per Contra, Shri G.K. Hiregoudar, learned
Government Advocate while justifying the order submitted:
(i) That there is no illegality in the order passed by the
authorities in deleting the name of the petitioner.
(ii) That whenever there are two or more candidate from
the same category, the candidate who is older in age is
preferred to a candidate who is younger in age;
(iii) That since the date of birth of petitioner was
28.07.1983 and the date of birth of respondent No.8
was 15.08.1982, while considering the list of Teachers
for approval to admit grant-in-aid, respondent No.8
being elder in age was preferred and the name of
petitioner was deleted, as both of them could not have
been accommodated in view of the fact that the
Institution had to appoint one Physical Education
Teacher out of the sanctioned strength of seven
Teachers.
(iv) That the order passed was in accordance with the
Karnataka Civil Services (General Recruitment) Rules,
1977 and as such there is no violation of any rules and
that the petitioner has not made out any ground for
interference.
Hence, sought for dismissal of the appeal.
8. Shri Sharad V. Magadum, learned counsel for
respondent No.8 justifying the impugned order submitted
that the date of joining of service is immaterial inasmuch as
the petitioner and respondent No.8 were appointed on the
same date and were given 7 days time to join to the
services, as such the petitioner reporting to his duty two
days earlier to that of respondent No.8 would not make any
difference and would not give any advantage to the
petitioner. That the petitioner being younger in age to that of
respondent No.8 the authorities have rightly deleted the
name of the petitioner from the list of Teachers while
approving grant-in-aid. He brought to the notice of the Court
a letter dated 18.07.2009 apparently issued by the petitioner
to respondent No.7-Institution to the effect that since his
name was deleted in the order of the Government, he was
unable to attend the school and sought to return all the
school material to the Principle of the School. He also brings
to the notice of this Court letter issued by respondent No.7-
Institution about the petitioner not joining the school on and
from 19.07.2009. Thus, he submits that the petitioner
having voluntarily left the service cannot continue to agitate
in the present appeal. Hence, sought for dismissal of the
appeal.
9. Heard the learned counsel Shri H.M. Dharigond
for appellant, Shri G.K. Hiregoudar, learned Government
Advocate for respondent Nos.1 to 3, 5 & 6, Shri Girish S.
Hiremath, learned counsel for respondent No.7-Institution ,
Shri Sharad V.Magadum, learned counsel for respondent
No.8 and Shri. M.M. Kusugal & Shri R.V. Kusugal, learned
counsel for respondent No.9.
10. In view of the aforesaid rival contentions, the
points that would arise for our consideration are:
(i) Whether the order dated 16.07.2009 at
Annexure-K passed by respondent No.1
deleting the name of the petitioner from
the list of appointed Teachers on the
premise of he being junior in service is
justified?
(ii) Whether the order passed by the learned
Single Judge dismissing the W.P.
No.64791/2009 up-holding application of
the Principle "last come first go" rule, in
the facts and circumstances of the case is
justified?
11. We have given our thoughtful consideration to
the arguments advanced by the learned counsel for the
parties and perused the entire material on record carefully.
12. Respondent No.7-Institution had invited the
applications for the post of three Teachers by publishing the
same in Vijay Karnataka Daily Newspaper, dated
07.06.2006. Respondent No.7-Institution had conducted
interview on 30.06.2006. Though the applications invited for
three posts only the petitioner and respondent No.8 had
applied and appeared for the interview. After the interview
and verification of documents, respondent No.7-Institution
passed the order appointing the petitioner and respondent
No.8 as the Teachers. In the said order, the name of the
petitioner is shown first and thereafter the name of
respondent No.8 was shown. Thereafter the appointment
orders of the petitioner and respondent No.8 were issued on
04.07.2006 as per Annexures-B and C, which was however
subject to approval of the concerned authorities in
Educational Department. Pursuant to which the petitioner
joined the service at respondent No.7-Institution on
05.07.2006 while respondent No.8 joined the service on
07.07.2006 i.e., two days subsequent to the petitioner
joining to the post. Respondent No.7-Institution
recommended the appointment of the petitioner and
respondent No.8 for approval following the roster system for
reservation of posts. The appointment of the petitioner and
respondent No.8 was approved by the Government without
grant-in-aid and the order of approval dated 22.08.2008 was
issued by respondent No.6 as per Annexure-J. In the said
order along with the petitioner and respondent No.8
appointment of other Teachers was also approved and the
seniority list is in the following order:
¸ÉêÉUÉ
PÀæ. d£Àä ªÉÃvÀ£À C¨sÀåyðAiÀÄ
²PÀëPÀgÀ ºÉ¸ÀgÀÄ ºÀÄzÉÝ ¸ÉÃjzÀ «zÁåºÀðvÉ
¸ÀA. ¢£ÁAPÀ ±ÉæÃt eÁw
¢£ÁAPÀ
1 ²æà azÁ£ÀAzÀ.«í.¥ÀvÁÛgÀ ¸À.². 20.1.1964 1.6.2003
¦.AiÀÄÄ.¹. 6250-
6250- »A.¥ÀAZÁ¼À
n.¹.ºÉZï. 12000 /2J
2 ²æà ¨Á®£ÀUËqÀ.J¥sï.¨Á®£ÀUËqÀæ ¸À.². 18.5.1980 7.6.2003 ¦.AiÀÄÄ.¹. 6250-
6250- f.JA.
n.¹.ºÉZï. 12000
3 ²æà §¸ÀªÀgÁd.¥sÀ.PÁPÀ£ÀÆgÀ ¸À.². 28.7.1983 5.7.2003 ¦.AiÀÄÄ.¹. 6250-
6250- f.JA.
n.¹.ºÉZï. 12000
4 ²æà ªÀÄ°èPÁdÄð£ÀUËqÀ.«í.ªÉÄt¸ÀV ¸À.². 15.5.1982 7.7.2003 ¦.AiÀÄÄ.¹. 6250-
6250- f.JA.
n.¹.ºÉZï. 12000
5 ²æà gÀ«.PÀȵÀÚ¥Áà.dªÁít ¸À.². 1.6.1985 27.9.2007 ¦.AiÀÄÄ.¹. 6250-
6250- ¥À.eÁ
r.Er. 12000
6 «zÁå.¹zÀÝ¥Àà.©£Áß¼À ¸À.². 16.7.1984 29.9.2007 ¦.AiÀÄÄ.¹. 6250
6250-- ¥À.eÁ
r.Er. 12000
13. As per the above order at Annexure-J, the name
of the petitioner is found at Sl.No.3 while the name of
respondent No.8 is found at Sl.No.4 and the name of
respondent No.9 is found at Sl.No.6.
14. The aforesaid facts are not in dispute. However,
while admitting respondent No.7-Institution for grant-in-aid
as per Annexure-K, the name of the petitioner has been
deleted/left out by giving following reason:
"2. ²æà AiÀÄZÀÑgÉñÀégÀ ¨Á®«PÁ¸À «zÁåªÀÄA¢gÀ, ºÉƼÉD®ÆgÀ, gÉÆÃt
vÁ®ÆèPÀÄ, UÀzÀUÀ f¯Éè, EzÀgÀ ªÀw¬ÄAzÀ £ÀqɸÀÄwÛgÀĪÀ ²æà AiÀÄZÀÑgÉñÀégÀ
PÀ£ÀßqÀ »jAiÀÄ ¥ÁæxÀ«ÄPÀ ±Á¯É, ºÉƼÉD®ÆgÀÄ, gÉÆÃt vÁ®ÆèPÀÄ, UÀzÀUÀ
f¯Éè, F ±Á¯ÉAiÀÄ°è £ÉêÀÄPÀ ªÀiÁrPÉÆArzÀÝ MlÄÖ 7 d£À ²PÀPÀ ëPgÀ À°è M§â
zÉÊ»PÀ ²PÀëPÀgÀ£ÀÄß £ÉêÀÄPÁw ªÀiÁrPÉƼÀîzÉ EgÀĪÀÅzÀjAzÀ F ±Á¯ÉAiÀÄ°è£À
²PÀëPÀgÀÄUÀ¼À ¥ÉÊQ «ÄøÀ¯Áw ¤AiÀĪÀÄUÀ¼À£ÀéAiÀÄ ¸ÉêÉAiÀÄ°è QjAiÀÄgÁzÀ ²æÃ
§¸ÀªÀgÁd ¥sÀ PÁPÀ£ÀÆgÀ, EªÀgÀ£ÀÄß PÉÊ©lÄÖ, G½zÀ ²PÀëPÀgÀÄUÀ¼À£ÀÄß
¸ÀºÁAiÀÄ£ÀÄzÁ£ÀPÉÌ M¼À¥Àr¸ÀĪÀ PÀÄjvÀÄ ¸ÀPÁðgÀªÀÅ ¥Àj²Ã°¹ F
PɼÀPÀAqÀAvÉ DzÉò¹zÉ."
Having said that, the following names have been added as
Teachers:
(1) ²æà azÁ£ÀAzÀ.«í.¥ÀvÁÛgÀ - ¸ÀºÀ ²PÀëPÀgÀÄ
(2) ²æà ¨Á®£ÀUËqÀ.J¥sï.¨Á®£ÀUËqÀæ - ¸ÀºÀ ²PÀëPÀgÀÄ
(3) ²æà ªÀÄ°èPÁdÄð£ÀUËqÀ.«í.ªÉÄt¸ÀV - ¸ÀºÀ ²PÀëPÀgÀÄ
(4) ²æà gÀ«PÀȵÀÚ¥Àà PÉ. ZÀªÁít - ¸ÀºÀ ²PÀëPÀgÀÄ
(5) PÀĪÀiÁj «zÁå ¹zÀÝ¥Àà ©£Áß¼ - ¸ÀºÀ ²PÀëPÀgÀÄ
(6) ²æà ±ÁAvÀ¥Àà PÉ.Dr£À - ¸ÀºÀ ²PÀëPÀgÀÄ
15. The order at Annexure-K also contains various
conditions. The relevant condition No.3 is extracted
hereunder:
"(3) ¸ÀzÀj ±Á¯ÉAiÀÄ°è ¤AiÀĪÀiÁ£ÀĸÁgÀ 7£Éà ºÀÄzÉÝUÉ zÉÊ»PÀ ²PÀëPÀgÀ£ÀÄß
£ÉêÀÄPÀ ªÀiÁrPÉƼÀî¨ÉÃPÁVgÀĪÀÅzÀjAzÀ, QjAiÀÄ ¸ÀºÀ ²PÀP ë ÀgÁzÀ
²æà §¸ÀªÀgÁd ¥sÀ PÁPÀ£ÀÆgÀ EªÀgÀ£ÀÄß PÉÊ©qÀ¯ÁVzÉ."
Except stating the requirement of appointing a Physical
Education Teacher to the respondent No.7 as ground for
deletion of name of the petitioner, no other reason has been
assigned.
16. It is extremely relevant at this juncture to note
that the appointment of petitioner was as per the Rules
namely, publication in the newspaper inviting application for
the post, conducting interview and verification of documents.
The said appointment was subsequently approved by the
authorities. Thus, the appointment of the petitioner seems to
be in accordance with the applicable rules. This being the
fact the deletion of name of the petitioner without affording
any opportunity of being heard and without assigning
reasons in accordance with the Rules is unsustainable. The
records indicate the name of petitioner has been placed at
Sl.No.4 on the basis of ranking done by the Selection Board
and thereafter has been deliberately arranged in that order.
Needless to reiterate that though the petitioner and
respondent No.8 were appointed on same day, the petitioner
has reported to the duty as Teacher two days prior to the
date of respondent No.8 joining to the duty. The normal rule
of calculating the seniority has always been on the length of
service. In that view of the matter, the consistent reflection
of the name of the petitioner above the name of respondent
No.8 would lead to conclusion that respondent No.7-
Institution as well as the concerned authorities have
considered the petitioner to be senior in ranking than that of
respondent No.8.
17. The petitioner has produced a copy of the
proceedings pertaining to File No.ED 159 PMC 2009 obtained
under right to information Act. Paragraph No.2 of the said
proceedings refers to appointment of 7 persons to the post
of Teachers, which is as under:
C£ÀÄzÁ£À
PÀæ. ²PÀëPÀgÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ¥ÀzÀ£ÁªÀÄ C¨sÀåyðAiÀÄ gÀ»vÀªÁV
«zÁåºÀðvÉ
¸ÀA. ²æÃ/²æ
/²æêÀÄw eÁw C£ÀĪÉÆâ¹zÀ
¢£ÁAPÀ
1 ²æà azÁ£ÀAzÀ.«í.¥ÀvÁÛgÀ, ¸À.². ¦.AiÀÄÄ.¹. 2J 22-
22-8-2008
n.¹.ºÉZï.
2 ²æà ¨Á®£ÀUËqÀ.J¥sï.¨Á®£ÀUËqÀæ, ¦.AiÀÄÄ.¹. ¸ÁªÀiÁ£Àå 22-
22-8-2008
¸À.². n.¹.ºÉZï.
3 ²æà §¸ÀªÀgÁd.¥sÀ.PÁPÀ£ÀÆgÀ, ¸À.².
². ¦.AiÀÄÄ.¹. ¸ÁªÀiÁ£Àå 22-
22-8-2008
n.¹.ºÉZï.
4 ²æà JA.«í.ªÉÄt¸ÀV, ¸À.². ¦.AiÀÄÄ.¹. ¸ÁªÀiÁ£Àå 22-
22-8-2008
n.¹.ºÉZï.
5 ²æà Dgï.PÉ.ZÀªÁít, ¸À.². ¦.AiÀÄÄ.¹. 22-
22-8-2008
r.Er. J¸ï.¹.
6 ²æêÀÄw «zÁå.¹zÀÝ¥Àà.©£Áß¼À, s¸À.². ¦.AiÀÄÄ.¹. ¥ÀæªÀUÀð-1 22-
22-8-2008
r.Er.
7 ²æà J¸ï.PÉ.DrãÀ, ¸À.². ¦.AiÀÄÄ.¹. J¸ï.n. 17-
17-2-2009
r.Er.
At paragraph No.6 of the said file, for similar reasoning not
appointing a Physical Teacher, name of Smt. Vidya C. Binnal,
respondent No.9 is proposed to be deleted as notice below:
"6) ¥ÁæxÀ«ÄPÀ
ÄPÀ ±Á¯ÉUÉ ¸ÀA§A¢ü¹zÀAvÉ 7£Éà ºÀÄzÉÝUÉ zÉÊ»PÀ ²PÀëPÀgÀ£ÀÄß
£ÉêÀÄPÀ ªÀiÁrPÉƼÀî¨ÉÃPÁVzÀÄÝ, ¸ÀzÀj ±Á¯ÉAiÀÄ°è zÉÊ»PÀ ²PÀëPÀgÀ£ÀÄß
£ÉëĹPÉÆArgÀĪÀÅ¢®è. DzÀÝjAzÀ ±Á¯ÉAiÀÄ°è QjAiÀÄ ¸ÀºÀ ²PÀëPÀgÁzÀ
²æêÀÄw «zÁå ¹ ©£Áß¼À, EªÀgÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ G½zÀ 06 d£À ¸ÀºÀ
²PÀ
²PÀëPÀgÀ£ÀÄß ¥ÀjUÀt¸À§ºÀÄzÁVzÉ."
Pursuant to the said noting at paragraph No.13, the names
of following 6 persons have been recommended to admit for
grant in aid.
²æêÀÄw/²æÃ
(1) ²æà azÁ£ÀAzÀ.«í.¥ÀvÁÛgÀ - ¸ÀºÀ ²PÀëPÀgÀÄ
(2) ²æà ¨Á®£ÀUËqÀ.J¥sï.¨Á®£ÀUËqÀæ - ¸ÀºÀ ²PÀëPÀgÀÄ
(3) ²æà §¸ÀªÀgÁd.¥sÀ.PÁPÀ£ÀÆgÀ - ¸ÀºÀ ²PÀëPÀgÀÄ
(4) ²æà ªÀÄ°èPÁdÄð£ÀUËqÀ.«í.ªÉÄt¸ÀV - ¸ÀºÀ ²PÀëPÀgÀÄ
(5) ²æà gÀ« PÀȵÀÚ¥Àà ZÀªÁít - ¸ÀºÀ ²PÀëPÀgÀÄ
(6) ²æà ±ÁAvÀ¥Àà PÉ.Dr£À - ¸ÀºÀ ²PÀëPÀgÀÄ
Thereafter deletion of name of respondent No.9, matter
referred for the information of Planning and Finance
Department. At paragraph No.14, the following is noticed.
14) ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ðAiÀĪÀgÀ DqÀ½vÁvÀäPÀ C£ÀĪÉÆÃzsÀ£ÉAiÉÆA¢UÉ
¸ÀPÁðj DzÉñÀ ºÉÆgÀr¸ÀĪÀÅzÀÄ. DzÉñÀzÀ ¥ÀæwAiÀÄ£ÀÄß E¯ÁSÉ ªÀÄvÀÄÛ
AiÉÆÃd£Á E¯ÁSÉ ºÁUÀÄ DAvÀjPÀ DyðPÀ ¸À®ºÉUÁgÀgÀ ±ÁSÉUÉ
ªÀiÁ»wUÁV PÀ¼ÀÄ»¹PÉÆqÀĪÀÅzÀÄ.
At paragraph No.15 and 16, the matter is recommended to
be placed before the Primary and Higher Education Minister
and also before the Chief Secretary. At paragraph Nos.20
and 21, it is noted that concerned Minister had directed to
issue orders regarding grant in aid. However, at paragraph
No.23, instead of deletion of name of respondent No.9, the
name of petitioner is sought be deleted as under:
"¥ÁågÁ 13(F) £À°è £ÀªÀÄÆ¢¹zÀ
Æ¢¹zÀAvÉ ²æêÀÄw «zÁå ¹.©£Áß¼À EªÀgÀ£ÀÄß
PÉÊ©nÖgÀĪÀzÀÄ ¸ÀªÀÄAd¸ÀªÀ®è. ¥ÀÄl 278 gÀ°è «ªÀj¹zÀAvÉ CªÀgÀÄ ¥ÀæªÀUÀð-1
PÉÌ ¸ÉÃjzÀÄÝ, «ÄøÀ¯Áw gÉƸÀÖgÀ ¥ÀæPÁgÀ 5£Éà jPÀÛ ¸ÁÜ£ÀzÀ°ègÀÄvÀÛzÉ PÁgÀt
¸ÁªÀiÁ£ÀåªÀUÀðPÉÌ ¸ÉÃjzÀ 3 d£À ²PÀëPÀgÀ°è ²æà §¸ÀªÀgÁd ¥sÀ. PÁPÀ£ÀÆgÀ gÀ
EªÀgÀÄ ¸ÉêÉAiÀÄ°è QjAiÀÄgÁUÀÄvÁÛgÉ, DzÀÝjAzÀ ²æêÀÄw «zÁå ©£Áß¼À
EªÀgÀ §zÀ°UÉ ²æà §¸ÀªÀgÁd PÀÆPÀ£ÀÆgÀ EªÀgÀ£ÀÄß PÉÊ©lÄÖ
C£ÀĪÉÆâ¹zÉ."
And thereafter, with the name of respondent No.9, 6 names
are approved. At paragraphs 30 to 32, as noted hereunder:
"30.
"30. F PÀÄjvÀAvÉ ¥Àj²Ã°¸À¯ÁV, ²æà AiÀÄZÀÑgÉñÀégÀ PÀ£ÀßqÀ ¥ÁæxÀ«ÄPÀ
±Á¯É, ºÉƼÉD®ÆgÀ, gÉÆÃt vÁ®ÆèPÀÄ, UÀzÀUÀ f¯Éè, F ±Á¯ÉAiÀÄ ¸ÀºÀ
²PÀëPÀgÁzÀ PÀĪÀiÁj «zÁå ¹. ©£Áß¼À, EªÀgÀ£ÉÆß¼ÀUÉÆAqÀAvÉ, 6 d£À
²PÀëPÀgÀ£ÀÄß ¸ÀºÁAiÀiÁ£ÀÄzÁ£ÀPÉÌ M¼À¥Àr¹ ¢. 16-
16-7-2009gÀ ¸ÀPÁðgÀzÀzÀ
DzÉñÀ ¸ÀASÉå Er 159 ¦JA¹ 2009gÀ£ÀéAiÀÄ DzÉñÀ ºÉÆgÀr¸À¯ÁVzÉ
(¥ÀÄl 290-
290-283).
31. vÀzÀ£ÀAvÀgÀ, F ±Á¯ÉAiÀÄ ¸ÀºÀ ²PÀëPÀgÁzÀ ²æà ©.J¥sï.PÁPÀ£ÀÆgÀ,
EªÀgÀÄ ¸ÀPÁðgÀPÉÌ ¢. 28- 28-7-2009gÀAzÀÄ ªÀÄ£À« ¸À°è¹, vÀ£ÀVAvÀ®Æ
¸ÉêÉAiÀÄ°è QjAiÀÄgÁzÀ ²æà ªÀÄ°èPÁdÄð£À «í. ªÉÄt¸Àt¸ÀV, EªÀgÀ£ÀÄß PÉÊ©lÄÖ
vÀ£ÀߣÀÄß ¸ÀºÁAiÀiÁ£ÀÄzÁ£ÀPÉÌ M¼À¥Àr¸À¨ÉÃPÉAzÀÄ PÉÆÃjgÀÄvÁÛgÉ (¥ÀÄl 328-
328-
296).
32. ¸ÀzÀjAiÀĪÀgÀ ªÀÄ£À«AiÀÄ£ÀÄß ¥Àj²Ã°¸À¯ÁV, ²æà ©.J¥sï.
PÁPÀ£ÀÆgÀ ºÁUÀÆ ²æà ªÀÄ°èPÁdÄð£À «í. ªÉÄt¸ÀV, EªÀj§âgÀÄ MAzÉÃ
¢£ÁAPÀzÀ°è £ÉêÀÄPÁw ºÉÆA¢zÀÄÝ, d£Àä ¢£ÁAPÀzÀ£ÀéAiÀÄ ²æà ©.J¥sï.
PÁPÀ£ÀÆgÀ, EªÀgÀÄ QjAiÀĪÀgÁVgÀĪÀÅzÀjAzÀ CªÀgÀ£ÀÄß ¸ÀºÁAiÀiÁ£ÀÄzÁ£ÀPÉÌ
M¼À¥Àr¸À®Ä D¸ÀàzÀ E®è¢gÀĪÀÅzÀjAzÀ CªÀgÀ£ÀÄß PÉÊ©qÀ¯ÁVzÉ."
18. From the above office noting, it is clear that
initially the name of respondent No.9 is recommended to be
deleted and the remaining 5 names including the petitioner
and respondent No.8 along with others were recommended
for approval, subsequently, however the name of the
petitioner is directed to be deleted on the premise of he
being junior most in the General Merit category of 3 posts.
All this without any opportunity having been provided to the
petitioner of being heard, there is thus infraction of well
settled principles of natural justice as noted earlier.
19. The initial appointment of the petitioner and
subsequent approval by the concerned authorities was in
accordance with law. That being the case, the deletion of the
name of the petitioner while considering the
recommendation to admit for grant in aid without affording
an opportunity to the petitioner cannot be countenanced.
The order in question having been passed without following
the Rules and principles of natural justice is unsustainable.
20. Though the learned Government Advocate
sought to justify the order referring to the Government
Order No. ED 343 PMC 2008, dated 02.06.2011 published in
the official Gazette, dated 02.06.2011, particularly referring
to condition No.6, we are of the considered view that the
said condition is of no avail, which is extracted hereunder:
"6. F ±Á¯Á-
±Á¯Á-PÁ¯ÉÃdÄUÀ¼À°è ªÉÄîÌAqÀ CªÀ¢üAiÀÄ°è £ÉêÀÄPÀUÉÆAqÀ
¨sÉÆÃzsÀPÀ ¹§âA¢AiÀÄ£ÀÄß C£ÀÄzÁ£ÀPÉÆ̼À¥Àr¸ÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è ¥Àj²µÀÖ
eÁw/¥Àj²µÀÖ ¥ÀAUÀqÀ C¨sÀåyðAiÀÄ PÉÆgÀvÉ EgÀĪÀ PÁgÀt¢AzÀ eÉõÀ×vÉAiÀÄ°è
QjAiÀÄgÁzÀªÀgÀ£ÀÄß C£ÀÄzÁ£ÀPÉÆ̼À¥Àr¸ÀzÉà PÉÊ©qÀ¯ÁVzÀÄÝ, CAvÀºÀ
QjAiÀÄgÁzÀªÀgÀ ¸ÁÜ£ÀzÀ°è F DzÉñÀzÀ ¢£ÁAPÀzÉƼÀUÁV ¥Àj²µÀÖ
eÁw/¥Àj²µÀÖ ¥ÀAUÀqÀzÀ C§åyðAiÀÄ£ÀÄß £ÉêÀÄPÀ ªÀiÁrPÉÆArzÀÝ°è, CAvÀºÀ
¥Àj²µÀÖ eÁw/¥Àj²µÀÖ ¥ÀAUÀqÀzÀ C§åyðAiÀÄ£ÀÄß ¸ÉêɬÄAzÀ vÉUÉzÀĺÁPÀzÉÃ
ªÀÄÄAzÀĪÀgɸÀvÀPÀÌzÀÄÝ. ºÁUÀÆ ªÉÄîÌAqÀ CªÀ¢üAiÀÄ°è SÁ¸ÀV DqÀ½vÀ
ªÀÄAqÀ½AiÀĪÀgÀÄ ¥Àj²µÀÖ eÁw/¥Àj²µÀÖ ¥ÀAUÀqÀzÀªÀgÀ£ÀÄß £ÉêÀÄPÁw
ªÀiÁrPÉÆArzÀÝgÉ CªÀgÀÄUÀ¼À£Éßà ªÀÄÄAzÀĪÀgɸÀvÀPÀÌzÀÄÝ."
The context and implication of the aforesaid condition is not
applicable to the facts and circumstances of the present
case.
21. The learned Government Advocate also brings to
the attention of this Court to Rule 4 of the Karnataka Civil
Services (General Recruitment) Rules, 1977, which provides
for procedure for appointment, wherein it is stated as under:
"Provided that if two or more candidates have
secured equal number of total marks in the
competitive examination or in the process of
selection, as the case may be, the order of merit
in respect of such candidates shall be fixed on
the basis of their age, the person or persons
older in age being placed higher in the order of
merit."
The aforesaid provision is also of no avail as the deletion of
name of the petitioner is to accommodate appointment of a
Physical Education Teacher. Except the above no other
provisions of law or Rule is cited before us to justify the
impugned order.
22. Thus, viewed from any angle, the order deleting
the name of the petitioner is unsustainable and is not
traceable to any of the provisions of law referred to across
the Bar.
23. Adverting to the reasoning given by the learned
Single Judge upholding the applicability of so called "last
come first go rule", the same also misconceived. As noted
earlier right from the date of appointment till deletion of the
name of the petitioner has been consistently reflected on the
top of the name of respondent No.8. The Seniority list has
not been prepared on the basis of "last come first go rule". It
is obviously prepared on the basis of the length of service.
As noted above, the petitioner admittedly reported to the
duty two days prior to the date of respondent joining to the
service. This is not a case of retrenchment. This aspect of
the matter has palpably been lost sight of by the learned
Single Judge. Therefore, acceptance of the submission of the
respondent, Government regarding applicability of the Rule
"last come first go" to the instant case, is not justifiable.
24. For the aforesaid analysis, we pass the following:
ORDER
(i) The appeal is allowed.
(ii) The order dated 11.09.2015, passed by
the learned Single Judge, in
W.P.No.64791/2019 is hereby set aside.
(iii) The impugned order at Annexure-K passed
by respondent No.1 deleting the name of
the petitioner is illegal and cannot be
sustained, the same is set aside.
(iv) The matter is remitted back to the
respondent No.1, Government for
reconsideration following the rules required
to be applied under the facts and
circumstances of the case by issuing prior
notice to all respondents and providing
sufficient opportunity to the petitioner to
present his case and thereafter pass
appropriate reasoned orders in accordance
with law within a period of three months
from the date of receipt of certified copy of
this order.
sd
JUDGE
sd
JUDGE
Vnp*
