The State Of Karnataka vs S. Lakshminarayana
2022 Latest Caselaw 2645 Kant

                              -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                       PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                          AND

     THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

        WRIT APPEAL NO.58 OF 2022 (S-RES)

BETWEEN:

1.   THE STATE OF KARNATAKA
     REPRESENTED BY ITS SECRETARY
     EDUCATION DEPARTMENT
     PRIMARY AND SECONDARY
     M.S. BUIDLING, VIDHANA VEEDHI
     BENGALURU-560001

2.   THE DIRECTOR OF
     PRE-UNIVERSITY EDUCATION IN KARNATAKA
     PALACE ROAD, BENGALURU-560001

                                         ... APPELLANTS
(BY SRI. S.RAJASHEKAR, AGA)

AND:

1.   S. LAKSHMINARAYANA
     S/O K. SRINIVASA BHATTA
     AGED ABOUT 71 YEARS
     RETIRED SANSKRIT LECTURER
     R/AT DOOR NO 171, DR. SHAM PRASAD
     MUKHARAJEE ROAD, SHIVAMOGGA CITY

2.   THE MANAGEMENT OF NATIONAL EDUCATION
     SOCIETY (REG.)
     REPRESENTED BY ITS SECRETARY
     BALARAJ URS ROAD
     SHIVAMOGGA CITY-577201
                                         ... RESPONDENTS
(BY SRI. RANGANATHA S. JOIS, ADVOCATE FOR C/R1)
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      THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT, PRAYING TO ALLOW THE WRIT APPEAL AND SET
ASIDE THE ORDER DATED 01.07.2021 IN W.P. NO.17941/2012
(S-RES) PASSED BY THE LEARNED SINGLE JUDGE, IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE
DELIVERED THE FOLLOWING:

                        JUDGMENT

1. Heard.

2. This intra court appeal has been filed challenging

the judgment dated 1st July 2021 passed in

W.P.No.17941/2012 (S-RES).

3. The facts of the case in brief:

The 1st respondent was appointed as a part time

lecturer in Sanskrit in the 2nd respondent - Society on

20th August 1981. The 1st respondent was appointed

as a lecturer in Sanskrit on a full time basis on 30th

September 1999. The appointment of the 1st

respondent was rejected on the ground that on the

date of appointment, the 1st respondent was over-

aged. A Review Petition No.124/1999 was filed by the

1st respondent before the Government which was

dismissed vide order dated 26th February 2001. The

1st respondent thereafter challenged the order in

Review Petition before this Court in

W.P.No.35557/2001. The Writ Petition was dismissed

vide order dated 04th October 2021 on the ground that

the 1st respondent being over-aged on the date of

appointment, was not entitled to get the appointment.

The 1st respondent thereafter filed Writ Appeal

No.7503/2001 which was allowed vide judgment dated

21.07.2005 wherein the order of the learned Single

Judge passed in WP No.35557/2001 was set aside.

The State Government, thereafter, filed the Special

Leave Petition challenging the order of the Division

Bench of this Court. The Special Leave Petition filed by

the State Government was dismissed. It was

thereafter that the State Government decided to

implement the order passed by the Division Bench of

this Court and as such, the appointment of the 1st

respondent for the post of Sanskrit lecturer was

restored. The 1st respondent had attained the age of

superannuation on 30th April 2008. The 1st respondent

thereafter filed an Appeal No.3/2008 before the

Government challenging the order dated 11th

September 2007. The appeal came to be dismissed

and thereafter, the 1st respondent filed the Review

Petition No.85/2008. The Review Petition was allowed.

The appellant thereafter filed Review Petition

No.1/2011 against the order passed in the Review

Petition No.85/2008 and the same was allowed vide

order dated 28th September 2011. The 1st respondent

thereafter feeling aggrieved filed the

W.P.No.17941/2012. The learned Single Judge

allowed the Writ Petition and quashed the order dated

28th September 2011. This instant appeal has been

filed thereafter by the present appellant.

4. Sri.S.Rajashekar, learned Additional Government

Advocate for the appellant submits that the learned

Single Judge has grossly erred in coming to a

conclusion that the 1st respondent is entitled to get the

continuity of service from 1990. It is submitted that

the 1st respondent was working as a part time lecturer

and the post of Sanskrit lecturer, which was created in

the year 1990, however, the requisition to fill up the

said post was sent on 22nd September 1999 and it was

only thereafter that the 1st respondent could have been

appointed and therefore at the most he is entitled to

get the continuity of service from 22nd September 1999

and could not have been given the continuity of service

from the year 1990.

5. We have considered the submissions and gone

through the records.

6. The learned Single Judge has taken a view that

the order dated 11th September 2007 approving the

appointment of the 1st respondent virtually takes away

the benefit that the 1st respondent had got before the

Division Bench. The Apex Court had also clarified this

aspect of the matter. The 1st respondent ought to

have been considered for regular appointment from the

date on which the requisition was sent i.e., 22nd

September 1999. It was a clear error on the part of

the authorities who have restricted the approval of

appointment with effect from 11th September 2007

only. The 1st respondent has filed the Review Petition

No.85/2008 questioning the approval of appointment

with effect from 11th September 2007. The Reviewing

Authority clearly held that the 1st respondent cannot be

granted any benefit prior to 1990 on the ground that

the Government had approved the creation of the post

of Sanskrit Lecturer only in the year 1990. It is also

observed by the learned Single Judge that the Division

Bench was clear in directing grant of age relaxation

and weightage as the 1st respondent was working as a

part time lecturer and therefore, entitled to give

continuity of service. It has been observed that the

Apex Court had further clarified the order passed by

the Division Bench that it was no where indicated that

the approval and continuity of service was to be

reckoned from the period spent as a part time lecturer

for regularization of service, grant of age relaxation

and weightage in terms of the Rules for continuity of

service and other benefits. It has been held by the

learned Single Judge that the State Government should

not deny the 1st respondent from continuity of service

from the year 1990 when the post was created and the

1st respondent continued to work on the created post

of Sanskrit lecturer in the 2nd respondent-Society.

Therefore, the order of Reviewing Authority was just

and proper in this peculiar facts and circumstances of

the case and further review filed by the State before

the same Reviewing Authority and the Reviewing

Authority restoring the order of 11th September 2007

were all without jurisdiction.

7. It has been held by the learned Single Judge that

the 1st respondent is entitled to continuity of service

from the year 1990 till the date of his retirement i.e.,

30th April 2008. We are of the considered view that

the review filed by the appellant against the order

dated 10th August 2010 passed in Review Petition

No.85/2008 before the same authority was in itself not

maintainable and as such, the order dated 28th

September 2011 passed by the authority which was

under challenge before the writ court was void ab

initio. In view of the above, we do not find any

infirmity or illegality in the view taken by the learned

Single Judge while deciding the Writ Petition. The

order dated 1st July 2021 passed in

W.P.No.17941/2012 is hereby confirmed. The Writ

Appeal is dismissed.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

PRS*