State Of Karnataka vs Smt. H.R.Asha
2022 Latest Caselaw 3671 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF MARCH, 2022

                        PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                   W.A.No.2524/2019

BETWEEN:

1 . STATE OF KARNATAKA,
    EDUCATION DEPARTMENT,
    M. S. BUILDING,
    DR. AMBEDKAR VEEDHI,
    BENGALURU - 560001.
    BY ITS PRINCIPAL SECRETARY

2 . THE COMMISSIONER,
    PRE-UNIVERSITY EDUCATION,
    18TH CROSS, MALLESHWARAM,
    BENGALURU-560003.

3 . THE DEPUTY DIRECTOR OF PUBLIC
    INSTRUCTION,
    CHITRADURGA DISTRICT,
    CHITRADURGA 577501.
                                           ... APPELLANTS

(By Sri B.Rajendra Prasad, Learned HCGP)

AND:

1.   SMT. H.R.ASHA
     W/O SRI B.M.C. ARADHYA,
     AGED ABOUT 65 YEARS,
     WORKING AS LECTURER IN ENGLISH,
     AT KALPATARU COMPOSITE JUNIOR COLLEGE,
                                 2



     KITTADAL, HOSDURGA TALUK,
     CHITRADURGA DISTRICT -577533.

2.   BHARATHI SISHU VIHAR EDUCATION
     SOCIETY (REGD.),
     KITTADAL, HOSADURGA TALUK,
     CHITRADURGA DISTRICT-577533.
     REP. BY ITS PRESIDENT,
                                                ... RESPONDENTS

(By Sri V.S.Arabatti, Adv. for R1;
    R2 - Served)


      This writ appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the order
passed   by   the   learned    single   judge   in   writ   petition
No.46821/2013 dated 11.09.2018 and dismiss the writ
petition filed by the 1st respondent herein.


      This appeal coming on for Final Hearing, this day,
Vishwajith Shetty J., delivered the following:


                             JUDGMENT

1. This intra court appeal is filed challenging the order

dated 11.09.2018 passed by the learned Single Judge of this

Court in W.P.No.46821/2013.

2. The parties are referred to by the rank assigned to

them in the writ petition.

3. The petitioner was appointed as a Lecturer in

respondent no.1-Institution in the year 1988 and on

10.08.1992, appointment of the petitioner was approved by

the State Government. Respondent no.1 had filed

W.P.No.32102/1992 challenging the order of approval passed

by the State Government and this Court vide order dated

16.07.1994 had set aside the order of approval dated

10.08.1992 and directed the State Government to re-consider

the matter afresh. The writ appeal filed by the petitioner

against the said order was dismissed. Subsequently, the

competent authority by order dated 31.01.2006 rejected the

prayer of the petitioner for approval of her appointment and

this order was challenged by the petitioner in appeal under

Section 130 of the Karnataka Education Act, 1983 (for short,

'the Act'), which was dismissed on 28.05.2008.

4. The petitioner, thereafter, had filed a review under

Section 132 of the Act, and the said review was allowed and

the concerned authorities were directed to approve the

appointment of the petitioner with aid and they were also

directed to pay the arrears of salary with effect from August

1998. Though the said order was passed by the reviewing

authority on 30.11.2010, the concerned authorities had not

implemented the same, and therefore, the petitioner filed

W.P.No.9894/2012, which was allowed by this Court on

30.05.2012 and the order dated 30.11.2010 was directed to

be implemented, expeditiously. After the disposal of

W.P.No.9894/2012, the Director, Department of Pre-

University Education had filed an appeal under Section 131 of

the Act challenging the order dated 30.11.2010 which was

directed to be implemented by this Court in

W.P.No.9894/2012. The said appeal was allowed on

15.07.2013 and being aggrieved by the same, petitioner has

preferred W.P.No.46821/2013 which has been allowed by the

learned Single Judge vide the order impugned herein. Being

aggrieved by the same, respondents 2 to 4 have preferred

this appeal.

5. Learned High Court Government Pleader for the

appellants/respondents 2 to 4 submits that the order dated

30.11.2010 which was directed to implemented by this Court

in W.P.No.9894/2012 was one without jurisdiction. He

submits that the said order has been rightly set aside in an

appeal by the competent authority and the learned Single

Judge without properly appreciating the same, has allowed

the writ petition. He submits that the appeal was allowed by

the competent authority noticing the irregularity in the order

passed by the reviewing authority and the learned Single

Judge without properly appreciating the same, has not only

set aside the order passed by the Appellate Authority, but

also has given positive directions to pay the salary for the

period from August 1998 onwards.

6. Per contra, learned Counsel for the petitioner submits

that the order passed by this Court in W.P.No.9894/2012 has

attained finality, and therefore, the Appellate Authority could

not have entertained the appeal subsequently, wherein the

order dated 30.11.2010 has been set aside. He submits that

only to circumvent the orders passed by this Court in

W.P.No.9894/2012, an appeal was preferred and the order

which was directed to be implemented has been set aside in

the said appeal and the learned Single Judge having

appreciated this aspect of the matter, has rightly allowed the

writ petition, and accordingly, he prays to dismiss the appeal.

7. We have anxiously considered the arguments addressed

on both side and also perused the material available on

record.

8. The material on record would go to show that the

petitioner was initially appointed as Lecturer in respondent

no.1-Institution in the year 1988. Though her appointment

was approved in the year 1992, subsequently, it was set

aside and the matter was remitted to the competent authority

to consider the case afresh and pass orders thereafter.

Subsequently, on 30.11.2010, the Deputy Secretary to

Government has passed an order directing the authorities to

approve the appointment of the petitioner and also to pay the

salary with effect from August 1998 onwards. The said order

was neither questioned by the authorities concerned, nor was

it implemented. Therefore, the petitioner had filed

W.P.No.9894/2012 before this Court and this Court by its

order dated 30.05.2012, had disposed of the said writ petition

directing the Commissioner of Pre-University Education to

implement the said order dated 30.11.2010, as expeditiously

as possible and in accordance with law without further loss of

time. The said order passed by this Court in

W.P.No.9894/2012 has undisputedly attained finality. After

this Court had directed the concerned authority to implement

the order dated 30.11.2010, an appeal was filed before the

Secretary to Government, Education Department, challenging

the order dated 30.11.2010 and in the said appeal, vide the

order dated 15.07.2013, the order dated 30.11.2010 which

was directed to be implemented by this Court in

W.P.No.9894/2012 was set aside. A perusal of the order

dated 15.07.2013 would go to show that the authority which

had passed the said order was not appraised of the fact that

this Court in W.P.No.9894/2012 has issued a direction to

implement the order dated 30.11.2010.

9. Be that as it may, since the order passed by this Court

in W.P.9894/2012 wherein the order dated 30.11.2010 was

directed to implemented has admittedly attained finality, the

appeal filed by the Director of Department of Pre-University

Education challenging the order dated 30.11.2010 could not

have been entertained by the Secretary to Government. If

the reviewing authority had no jurisdiction to pass the order

dated 30.11.2010, the respondents ought to have brought

the same to the notice of this Court in W.P.No.9894/2012.

Since this Court had already directed the concerned

authorities to implement the order dated 30.11.2010 passed

by the reviewing authority, the respondents could not have

challenged the said order dated 30.11.2010 before the

Secretary to Government, and therefore, we find force in the

arguments advanced by the petitioner that the appeal was

filed by the respondents subsequent to the disposal of

W.P.No.9894/2012 only to circumvent the orders passed by

this Court.

10. The learned Single Judge having appreciated all the

aforesaid aspects of the matter, has rightly set aside the

orders passed by the Secretary to Government in Appeal

No.32/2013, wherein the order dated 30.11.2010 passed by

the reviewing authority was set aside. As rightly observed by

the learned Single Judge, the respondent-Government is

required to pay the salary and all consequential benefits to

the petitioner from August 1998 onwards, till the date of

retirement, since it is not in dispute that the petitioner has

worked during the said period and thereafter retired on

attaining the age of superannuation. Respondent no.1 has not

disputed that the petitioner has served in the Institution, and

therefore, petitioner is entitled for the salary for the period

for which she has worked. Under the circumstances, we find

no merit in this writ appeal. Accordingly, the same is

dismissed.

11. Learned Counsel for the petitioner submits that though

the petitioner has retired long back, consequential benefits

have not yet been paid. In that view of the matter, we direct

respondents 2 to 4 and the concerned authorities to pay the

salary and other benefits to the petitioner as ordered by the

learned Single Judge, as expeditiously as possible, but not

later than the period of three months from the date of receipt

of certified copy of this judgment.

Sd/-

JUDGE

Sd/-

JUDGE

KK