Amarnath vs State Of Karnataka And Ors
2022 Latest Caselaw 9354 Kant

                                             WP 204282/2018

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               IN THE HIGH COURT OF KARNATAKA
                      KALABURAGI BENCH

            DATED THIS THE 22ND DAY OF JUNE 2022

                               BEFORE

        THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

                W.P.No.204282/2018 (S-RES)
BETWEEN:

Amarnath,
S/o Kalyani, Age: 36 years,
Occ: Now Nil
(Principal, Morarji Desai
Residential School, Yalwar),
Yalwar, Tq. Jewargi,
Dist. Kalaburagi.                         ...PETITIONER

(By Sri P.Vilas Kumar, Sr. Counsel for
    Sri P.Nitesh Vilas Kumar, Adv.)

AND:

1.     State of Karnataka,
       Represented by its
       Principal Secretary,
       Social Welfare Department,
       Vikas Soudha,
       Bengaluru - 560 001.

2.     The State of Karnataka,
       Rep. by its Principal Secretary,
       Rural Development & Panchayat
       Raj Department, M.S.Building,
       Bengaluru - 560 001.
                                                  WP 204282/2018

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3.    The Karnataka Residential
      Educational Institutions Society,
      An organization of Social Welfare
      Department No.179, 3rd Floor,
      Sheshadripuram 1st Main Road,
      Bengaluru, Rep. by its
      Executive Director.

4.    The Chief Executive Officer,
      Zilla Panchayat, Kalaburagi District,
      Kalaburagi - 585 102.                     ...RESPONDENTS

(By Sri Shivakumar R.Tengli, AGA for R-1 & 2;
    Sri Sharanabasappa K.Babshetty, Adv. for R-3)


       This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the impugned order
dated 11/23.07.2018 vide Annexure-A passed by respondent
no.3, and consequently, order for continuation of his service as
Principal and also to regularize his service from the date of his
initial appointment i.e., on 20.06.2009 with all consequential
benefits

      This petition coming on for Preliminary Hearing 'B' Group,
this day, the Court made the following:

                             ORDER

1. The petitioner, who is working as the Principal in Morarji

Desai Residential School at Yalwar, has filed this writ petition

with a prayer to quash the impugned order dated 11/23.07.2018

vide Annexure-A passed by respondent no.3, and consequently,

order for continuation of his service as Principal and also to WP 204282/2018

regularize his service from the date of his initial appointment

i.e., on 20.06.2009 with all consequential benefits.

2. Brief facts of the case as revealed from the records are,

petitioner was appointed as the Principal of Morarji Desai

Residential School, Yalwar, on 20.06.2009 as per Annexure-B.

After joining the service, petitioner had completed his post-

graduation on 17.08.2010. The Cadre and Recruitment Rules

(for short, 'C & R Rules') for the Residential Schools were

framed by the Karnataka Residential Educational Institutions

Society in the year 2011 and admittedly, it had come into force

with effect from 21.01.2011. As per the said C & R Rules, the

petitioner was entitled for a service weightage of 5% for each

completed year of service and on the basis of such a service

weightage, he was entitled for regularization of his appointment.

It is under these circumstances, the petitioner had submitted a

representation and considering the same, the impugned

endorsement at Annexure-A was issued by respondent no.3

rejecting the claim of the petitioner for awarding service

weightage on the ground that as on the date of his appointment, WP 204282/2018

he did not possess the prescribed qualification for being

appointed as Principal, and therefore, the prayer made by the

petitioner to regularize his service was also rejected. Being

aggrieved by the same, the petitioner is before this Court.

3. Learned Senior Counsel appearing for the petitioner

submits that as on the date of appointment of the petitioner to

the post of Principal, C & R Rules were not framed by

respondent no.3 and it is only in the year 2011, the C & R Rules

had come into force. He submits that even before the C & R

Rules had come into force, the petitioner has completed his

post-graduation degree, and therefore, he was entitled for 5%

service weightage as provided under the C & R Rules. In support

of his contentions, he has relied upon the judgments of the

Division Bench of this Court in W.A.No.5127/2012 and

connected matters disposed of on 28.02.2013 and

W.A.No.31346/2012 and connected matters disposed of on

21.03.2013.

WP 204282/2018

4. Per contra, learned Counsel appearing for respondent no.3

submits that as on the date of petitioner's appointment, he only

possessed graduation degree and as per the C & R Rules, for the

post of Principal, a candidate is required to possess a post-

graduation degree. He submits that the petitioner's claim for

awarding 5% service weightage has been rightly rejected by

respondent no.3 in view of the judgment of the Division Bench

of this Court in W.P.No.5127/2012, and therefore, the impugned

endorsement cannot be found fault with.

5. Learned AGA has also argued in support of the impugned

endorsement and prays to dismiss the writ petition.

6. I have considered the arguments addressed on behalf of

all the parties and also perused the material available on record.

7. The undisputed facts of the case are, the petitioner who

possessed graduation degree was appointed as Principal by

respondent no.3 on 20.06.2009. The petitioner, thereafter,

completed his post-graduation degree on 17.08.2010. The C & R

Rules were brought into force by respondent no.3 with effect WP 204282/2018

from 21.01.2011. The claim of the petitioner for awarding 5%

service weightage has been rejected by respondent no.3 on the

ground that as on the date of his appointment, he did not

possess the requisite qualification as provided under the C & R

Rules. Respondent no.3 while rejecting the claim of the

petitioner has relied upon the judgment of the Division Bench of

this Court in W.A.No.5127/2012 and connected matters.

8. A perusal of the impugned endorsement would go to show

that respondent no.3 has relied upon paragraph 19 of the

judgment passed by the Division Bench of this Court in

W.A.No.5127/2012, wherein the Division Bench was considering

the judgments of the Hon'ble Supreme Court with regard to

regularization of the services of temporary employees and their

entitlement for awarding service weightage, and had observed

that if the initial entry into the service was illegal or the

candidate did not possess the requisite qualification, question of

awarding service weightage does not arise. The Division Bench

of this Court in W.A.No.5127/2012 was dealing with the

indentical cases, where as on the date of appointment, the C & WP 204282/2018

R Rules had not come into force. It is under these

circumstances, the Division Bench in W.A.No.5127/2012 and

connected matters, dismissed the writ appeals filed by the

Karnataka Residential Educational Society and confirmed the

order of the Single Judge, wherein the Single Judge had directed

the appellant-Society to re-do the list after awarding service

weightage to the candidates who were in service as on the date

C & R Rules came into force.

9. Respondent no.3 has not taken into consideration the

operative portion of the order passed by the Division Bench of

this Court in W.A.No.5127/2012. On the other hand, it has taken

into consideration paragraph 19 of the said order, wherein the

Division Bench had quoted the judgment of the Hon'ble Supreme

Court in a case where regularization of service of temporary

employees was being considered and also their entitlement for

awarding service weightage. Having appreciated the said

judgment of the Hon'ble Supreme Court and also taking into

consideration the fact that C & R Rules had come into force after

the initial order of appointment, this Court has held in the said WP 204282/2018

case that service weightage is required to be awarded to the

candidates who were in service as on the date of C & R Rules

coming into force.

10. The said judgment in W.A.No.5127/2012 and connected

matters has been followed by the other Division Bench of this

Court in W.A.No.31346/2012 and connected matters disposed of

on 21.03.2013 and it has been also held in the said case that

service weightage was to be awarded to those teachers who

were in service as on the date of C & R Rules coming into force

and it has been further observed by the Division Bench that the

Society shall accommodate the candidates without disturbing

the other candidates who have been already selected.

11. In view of the judgment of the Division Bench of this Court

in W.A.No.5127/2012 which has been followed by another

Division Bench in W.A.No.31346/2012, wherein it has been

specifically held that the teachers who were in service as on the

date of C & R Rules coming into force, were entitled for

awarding of service weightage, the impugned endorsement WP 204282/2018

issued by respondent no.3 is not sustainable in law. Accordingly,

the following order:

12. The writ petition is partly allowed. The impugned

endorsement at Annexure-A dated 11/23.07.2018 is quashed.

The respondents are directed to consider the case of the

petitioner afresh for the purpose of awarding him service

weightage as provided under the C & R Rules in the light of the

judgment passed by the Division Bench of this Court in

W.A.No.5127/2012 and W.A.No.31346/2012, and thereafter,

also consider the case of the petitioner for regularization of his

service in accordance with law, as expeditiously as possible. It is

needless to state that such an exercise shall be done by

respondent no.3 not later than a period of four months from the

date of receipt of a certified copy of this order.

Sd/-

JUDGE

KK