Karnataka High Court
Vijay Kumar S/O Krishna Bhat ... vs Smt. Ugamadevi Bhawarilal Nehar ... on 16 August, 2023
Bench: M.Nagaprasannapresided Bymnpj
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WP No. 104489 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 104489 OF 2023 (S-R)
BETWEEN:
VIJAY KUMAR S/O KRISHNA BHAT VAIDHYA,
AGE. 63 YEARS, OCC. RETIRED PROFESSOR,
R/O. PRASARA BHARATI NILAYA OPP. COMPOUND
BESIDES VENKATESHWARA AUTOMOBILES,
4TH WARD, PATEL NAGAR, VIJAYANAGAR,
DIST. VIJAYANAGAR.
... PETITIONER
(BY SRI. T.M. NADAF & SMT. GAYATRI S.R., ADVOCATES)
VISHAL AND:
NINGAPPA
PATTIHAL 1. SMT. UGAMADEVI BHAWARILAL NEHAR,
Digitally signed by
THEOSOPHICAL WOMENS COLLEGE,
VISHAL NINGAPPA HAMPI ROAD, VIJAYANAGAR-583201,
PATTIHAL
R/BY ITS SECRETARY, SRI. ASHOK JERE,
Date: 2023.08.19
10:40:38 +0530 AGE. MAJOR, OCC. SECRETARY,
R/O. HAMPI ROAD, VIJAYANAGAR,
DIST. VIJAYANAGAR-583201.
2. THE PRESIDENT,
SMT. UGAMADEVI BHAWARLAL NEHAR,
THEOSOPHICAL WOMENS COLLEGE,
HAMPI ROAD, VIJAYANAGAR-583201
BABULAL JAIN, FATHER NAME NOT KNOWN,
AGE. MAJOR, R/O. HAMPI ROAD, VIJAYANAGAR,
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DIST. VIJAYANAGAR-583201.
3. ADDL. DIRECTGOR OF COLLEGIATE EDUCATION,
GOVERNMENT OF KARNATAKA,
OFFICE OF THE COMMISSIONER,
COLLEGIATE EDUCATION, BENGALURU-560001.
4. THE REGIONAL JOINT DIRECTOR,
COLLEGIATE EDUCATION,
MINI VIDHANA SOUDHA, GULBARGA,
DIST. GULBARGA-585101.
5. THE ACCOUNTANT GENERAL (A & E),
OFFICE OF THE ACCOUNTANT GENERAL (A & E),
P.B.NO. 5329/5369, ANNEXE BUILDING,
PARK HOUSE ROAD, BENGALURU-560001.
6. THE PRINCIPAL,
SMT. UGAMADEVI BHAWARLAL NEHAR,
THEOSOPHICAL WOMENS COLLEGE,
HAMPI ROAD, VIJAYANAGAR-583201.
... RESPONDENTS
(BY SRI. MADANMOHAN M. KANNUR, AGA FOR R3-R5;
R1, R2 & R3 D/W)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRYAING TO
ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED
COMMUNICATION/LETTER DATED. 04.02.2023 BEARING
NO. KA Shi E/681/Tri Sou Yo/CR 4/2022-23 ISSUED BY
3RD RESPONDENT AND ALSO THE FINAL PENSION FIXED
BY THE RESPONDENT NO.5 DATED. 19.04.2023 BEARING
NO. PV6/2/2023377289/2092349707/399243B WHICH
ARE PRODUCED AT ANNEXURE-Y AND ANNEXURE-Z &
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
1. The petitioner is before this Court calling in
question an order which fixes the pension of the petitioner
on 04.02.2023 erroneous and has sought a direction for
issuance of a writ in the nature of mandamus to pay the
pension in terms of what this Court had directed in its
order passed in W.A. No.100118/2022.
2. Heard the learned counsel Shri T.M. Nadaf
appearing for the petitioner and the learned AGA
Shri M.M. Khannur appearing for respondent Nos.3 to 5.
3. The petitioner joins the services as a part time
Lecturer in the Management of MES Society in the year
1985. From the date of his appointment, I deem it
appropriate to fast forward the facts up to 31.10.2008, on
which date the services of the petitioner comes to be
terminated and the Management approves such
termination. The petitioner calls the said order in question
before the Education Appellate Tribunal, which is
dismissed. Challenging the said order, he then knocks at
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the doors of this Court in W.P. No.79861/2013. A
Co-ordinate Bench of this Court by its order dated 08th
October 2021 allows the petition by following order:
"The writ petition is allowed. The order
dated 12.06.2009 passed by the
Management of respondents No.1 and 2 vide
Annexure-H and the judgment and decree
dated 07.02.2013 passed in M.A.(EAT)
No.2/2009 by the Principal District Judge,
Ballari vide Annexures-L and M respectively
are quashed.
Since the petitioner has already
attained the age of superannuation, the
question of reinstating him would not arise.
The petitioner however would be entitled for
25% of backwages ATAR service benefits
including the retirement benefits. and
continuity of service for the purpose of
settlement of his service benefits including
the retirement benefits."
4. Since the petitioner had already attained the
age of superannuation by the time the order of
Co-ordinate Bench comes to be passed on 08th October
2021, it was directed that the petitioner would be entitled
to continuity of services with 25% of back wages.
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5. The said order comes to be tossed by the
Management before the Division Bench in W.A.
No.100118/2022. In the proceedings, both the
Management and the petitioner file a joint memo. The
joint memo reads as follows:
"JOINT MEMO
The Appellants and the contesting Respondent
No.1 submit as under:
1. The Appellants have preferred this instant intra
court Writ Appeal calling in question the order
dated 08.10.2021 passed by the Learned single
Judge in W.P. No.79861/2013.
2. The Learned Single Judge was kindly pleased
to allow the Writ Petition filed by the Respondent
No.1 herein and was further pleased to pass the
following order:
"the Writ petition is allowed. The
order dated 12.06.2009 passed by
the Management of respondents No.
1 and 2 vide Annexure H and
judgment and decree dated
07.02.2013 passed in M.A.(EAT)
No.2/2009 by the Principal District
Judge, Ballari vide Annexure- L and
M respectively are quashed. Since
the petitioner has already attained
the age of superannuation, the
question of reinstateing him would
not arise. The petitioner however
would be entitled for 25% of back
wages and continuity of service for
the purpose of settlement of his
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service benefits including the
retirement benefits."
3. However the Appellants herein and the
Respondent No.1 herein at the intervention of the
well wishers and on the advise of the said well
wishers have agreed to mutually settle the lis that
had arisen inter se., and further that the
contesting respondent i.e. the Respondent No.1
herein has agreed to forgo the claim of 25% back
wages which was directed to be paid to the
Respondent No.1 as per the order of the Learned
Single Judge, as against the Appellants herein
only, and further that the Appellants herein would
have no liability, save for sending all the
necessary Service papers with up to date entries
as per law including grant in Aid code, pertaining
to the Respondent No.1 to the proper
Government Authority within two weeks from
today without waiting for certified copy
considering the fact that sufficient time has
already lapsed since the order has been passed
by the learned Single Judge. The rest of the order
of the learned Single Judge would be intact.
4. It is specifically agreed between the parties
that the Appellants will not have any financial
liability but would assist the Respondent No.1 to
make the claims from the Department of
Collegiate Education Government of Karnataka, to
make and realise the benefits and dues that have
accrued on the Respondenyt No.1, as per the
impugned order passed by the Learned Single
Judge.
5. The parties undertake to abide by the above
terms and conditions which the parties have
voluntarily and mutually agreed and save for the
terms and obligations mentioned hereinabove,
only in respect of this appeal and the order
impugned herein.
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Wherefore the parties to this Joint memo
most humbly pray that the Hon'ble Court may be
pleased to acept the instant memo and further be
pleased to pass an order modifying the impugned
order dated 08.10.2021 passed by the Learned
single Judge in W.P. No.79861/2013 to the said
extent as agreed between the parties in the
instant memo and further be pleased to dispose
of the Writ Appeal, in the interest of justice and
equity."
6. Recording the joint memo, the Division Bench
disposes the writ appeal in terms of the its order dated
18.07.2022 by following order:
"The matter was heard for some time on the
previous occasion. The appellant and the 1st
respondent have entered into an amicable
settlement, and have filed a Joint Memo dated
18.07.2022 which reads as under:
"The Appellants and the contesting
Respondent No.1 submit as under:
1. The Appellants have preferred this
instant intra court Writ Appeal calling in
question the order dated 08.10.2021
passed by the Learned single Judge in W.P.
No.79861/2013.
2. The Learned Single Judge was
kindly pleased to allow the Writ Petition
filed by the Respondent No.1 herein and
was further pleased to pass the following
order:
"the Writ petition is allowed.
The order dated 12.06.2009
passed by the Management of
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respondents No.1 and 2 vide
Annexure H and judgment and
decree dated 07.02.2013 passed
in M.A.(EAT) No.2/2009 by the
Principal District Judge, Ballari vide
Annexure-L and M respectively are
quashed. Since the petitioner has
already attained the age of
superannuation, the question of
reinstateing him would not arise.
The petitioner however would be
entitled for 25% of back wages
and continuity of service for the
purpose of settlement of his
service benefits including the
retirement benefits."
3. However the Appellants herein and
the Respondent No.1 herein at the
intervention of the well wishers and on the
advise of the said well wishers have agreed
to mutually settle the lis that had arisen
inter se, and further that the contesting
respondent i.e. the Respondent No.1 herein
has agreed to forgo the claim of 25% back
wages which was directed to be paid to the
Respondent No.1 as per the order of the
Learned Single Judge, as against the
Appellants herein only, and the Respondent
No.1 further agrees that the Appellants
herein would have no liability, save for
sending all the necessary Service papers
with up to date entries as per law including
grant in Aid code, pertaining to the
Respondent No.1 to the proper Government
Authority within two weeks from today
without waiting for certified copy
considering the fact that sufficient time has
already lapsed since the order has been
passed by the learned Single Judge. The
rest of the order of the learned Single Judge
would be intact.
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4. It is specifically agreed between the
parties that the Appellants will not have any
financial liability but would assist the
Respondent No.1 to make the claims
from the Department of Collegiate
Education Government of Karnataka, to
make and realise the benefits and dues that
have accrued on the Respondent No.1, as
per the impugned order passed by the
Learned Single Judge.
5. The parties undertake to abide by
the above terms and conditions which the
parties have voluntarily and mutually
agreed and save for the terms and
obligations mentioned hereinabove, only in
respect of this appeal and the order
impugned herein.
Wherefore the parties to this Joint
memo most humbly pray that the Hon'ble
Court may be pleased to accept the instant
memo and further be pleased to pass an
order modifying the impugned order dated
08.10.2021 passed by the Learned single
Judge in W.P. No.79861/2013 to the said
extent as agreed between the parties in the
instant memo and further be pleased to
dispose of the Writ Appeal, in the interest of
justice and equity."
2. We have perused the Joint Memo and have
interacted with the 1st respondent and also
Shri.Jagadeesh P.M. representing the Management.
We are satisfied that the settlement incorporated in
the Joint Memo is bona fide and that there is nothing
in law or fact that comes in the way of disposing of
this appeal in terms thereof and to that extent
modifying the impugned order of the learned Single
Judge.
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WP No. 104489 of 2023
In the above circumstances, this writ appeal is
disposed of accordingly.
Nothing herein above shall be construed as
permitting duplication of the claim of respondent
No.1 nor coming in the way of deriving benefit under
the settlement in question.
The appellant is directed to send all the
concerned records with upto date entries to the 2nd
respondent for consideration and that the said
consideration shall take place at the hands of the 2nd
respondent or such other competent authority within
an outer limit of eight weeks next following. Delay, if
brooked, will be viewed very seriously.
Costs made easy."
7. It was declared by the Division Bench that the
petitioner was entitled to all benefits except 25% of back
wages against the Institution. The appellant - Institution
was directed to send all the records up to the date the
entries to the 2nd respondent for consideration of payment
of pension in terms of the joint memo. Therefore, the joint
memo becomes the part of the order passed by the
Division Bench in which the 2nd respondent was the
Directorate of Collegiate Education. The petitioner then
represents to the Institution on 25.07.2022 for compliance
with the order, all the necessary records are sent to the
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Government by the Institution. What comes in return is a
Pension Payment Order, which grossly reduces the pension
entitlement of the petitioner. The petitioner then
represents against this action which is turned down on
04.02.2023. The reason for turning down is as follows:
"¥Àjòð¸À¯ÁV, ¸ÀzÀjAiÀĪÀgÀ£ÀÄß PÁ¯ÉÃdÄ DqÀ½vÀ ªÀÄAqÀ½AiÀÄÄ
¢£ÁAPÀ: 12.06.2009 jAzÀ ¸ÉêɬÄAzÀ ªÀeÁ ªÀiÁrgÀÄvÀÛzÉ. ¸ÀzÀj ªÀeÁ
DzÉñÀ¢AzÀ ¨sÁ¢üvÀgÁzÀ ²æà «dAiÀÄPÀĪÀiÁgÀ, EªÀgÀÄ EAT §¼Áîj
f¯Áè ¸ÀvÀæ £ÁåAiÀiÁ®AiÀÄ E°è jmï Cfð ¸ÀASÉå MA(EAT)
No.02/2009gÀ°è zÁªÉ zÁR°¹zÀÄÝ, £ÁåAiÀiÁ®AiÀĪÀÅ ¢£ÁAPÀ:
07.02.2013 gÀAzÀÄ F PɼÀPÀAqÀAvÉ wÃ¥ÀÄð ¤ÃrgÀÄvÀÛzÉ.
"... Since the petitioner has already
attained the age of superannuation, the
question of re0instating him would not
arise. The petitioner however would be
entitled for 25% back wages and
continuity of service for the purpose of
settlement of his service benefits
including the retirement benefits."
vÀªÀÄä PÀbÉÃj¬ÄAzÀ ¤UÀ¢ü¥Àr¹zÀ ªÉÃvÀ£ÀªÀ£ÀÄß ¥Àj²Ã°¹zÁV
¢£ÁAPÀ: 31.12.2015gÀªÀgÉUÉ 2006gÀ ¥ÀjµÀÌøvÀ ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°è ªÉÃvÀ£À
¤UÀ¢ü¥Àr¹ £ÀAvÀgÀ 2016gÀ ¥ÀjµÀÌøvÀ ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°è ¤UÀ¢ü¥Àr¹gÀĪÀÅzÀÄ
PÀAqÀħA¢gÀÄvÀÛzÉ. £ÁåAiÀiÁ®AiÀÄzÀ wæð£À°è ¸ÀzÀjAiÀĪÀjUÉ
"continuity of service for the purpose of settlement
of his benefits including the retirement benefits"
JAzÀÄ DzÉò¹zÉ.
DzÀÝjAzÀ ¸ÀzÀjAiÀĪÀjUÉ ¸ÉêÁ ¸Ë®§å ¤ÃqÀĪÁUÀ ¢£ÁAPÀ
01.01.2016 jAzÀ 2006gÀ ¥ÀjµÀÌøvÀ ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°èAiÉÄà ªÉÃvÀ£À
ªÀÄÄAzÀĪÀgɸÀ¨ÉÃPÁVgÀÄvÀÛzÉ.
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WP No. 104489 of 2023
¸ÀzÀjAiÀĪÀgÀ£ÀÄß PÁ¯ÉÃdÄ DqÀ½vÀ ªÀÄAqÀ½AiÀÄ ¢£ÁAPÀ:
12.06.2009 jAzÀ ¸ÉêɬÄAzÀ ªÀeÁ ªÀiÁrzÀÄÝ, F »£À߯ÉAiÀÄ°è
¸ÀzÀjAiÀĪÀgÀÄ ¢£ÁAPÀ 01.01.2016jAzÀ PÀvÀðªÀåzÀ°è EgÀzÉÃ
EgÀĪÀÅzÀjAzÀ 2016gÀ AiÀÄÄf¹ ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°è ¥ÀjµÀÌj¸À®Ä
¤AiÀĪÀÄUÀ¼À°è CªÀPÁ±À«gÀĪÀÅ¢®è.
DzÀÝjAzÀ ¸ÀzÀjAiÀĪÀgÀ ªÉÃvÀ£ÀªÀ£ÀÄß 2006gÀ ¥ÀjµÀÌøvÀ AiÀÄÄf¹
ªÉÃvÀ£À ±ÉæÃtÂAiÀÄ°è ¤ªÀÈwÛ ¢£ÁAPÀzÀªÀgÉUÀÆ ¥ÀÄ£Àgï ¤UÀ¢ü¥Àr¹
«ªÀgÀUÀ¼À£ÀÄß ¸ÉêÁ¥ÀĸÀÛPÀzÀ°è £ÀªÀÄÆ¢¹, zÀÈrPÀj¹ ¥ÀjµÀÌøvÀ
¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß F PÀÆqÀ¯Éà PÉÃAzÀæ PÀbÉÃjUÉ PÀ¼ÀÄ»¹PÉÆqÀ®Ä ¸ÀÆa¸ÀÄvÁÛ
¸ÉêÁ ¥ÀĸÀÛPÀzÉÆA¢UÉ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß »AwgÀÄV¸À¯ÁVzÉ.
¸ÀzÀj ¥ÀæPÀgÀtªÀÅ £ÁåAiÀiÁ®ÄAiÀÄzÀ ¥ÀæPÀgÀtªÁVgÀĪÀÅzÀjAzÀ
²ÃWÀæªÁV PÀæªÀÄPÉÊUÉÆAzÀÄ ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß PÀ¼ÀÄ»¹PÉÆqÀ®Ä
¸ÀÆa¸À¯ÁVzÉ."
8. The Directorate of Collegiate Education, who
was a party to the writ appeal declines to grant the relief
of continuity of service, blatantly contrary to what the
Division Bench, has observed while disposing the writ
appeal. The services rendered from 2009 to 2018 is taken
away by the Directorate while fixing the pension, which
has resulted in pension at Rs.18,280/- per month as
against the entitlement of the petitioner, which is much
higher according to the learned counsel appearing for the
petitioner. Therefore, the order that is passed by the
Directorate of Collegiate Education runs completely
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contrary to what the Division Bench of this Court had
directed while closing the proceedings on the basis of the
joint memo.
9. Learned AGA would submit that the
Governemnt was not a party to the joint memo. Therefore,
they are not bound by the orders passed by the Division
Bench on the basis of the joint memo, the petitioner is not
entitled to the benefit as he has not worked during the
said period. All these submissions are on basis of the
impugned order. The basis of the impugned order itself is
fundamentally flawed as the petitioner was held entitled to
have continuity of service by the Division Bench.
Interpretation of the continuity of service is not rocket
science, it is the service from the date (a) to till the date
of superannuation. If the petitioner was held entitled to
continuity of service, the Directorate could not have held
contrary to what the Division Bench observed, in fact what
the Directorate holds borders on contempt of Court of
what this Court had directed in Writ Appeal
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WP No. 104489 of 2023
No.100118/2022. The submission of the learned AGA that
the State was not a party is contrary to the record, the 2nd
respondent in the writ appeal was the Directorate of
Collegiate Education and the proceedings are closed on the
joint memo in the presence of the 2nd respondent being a
party to the proceedings. The State cannot contend
otherwise, as the joint memo and the order passed by the
Division Bench in terms of the joint memo is implemented
by the State, it is a faulty implementation, if the plea of
the State is that they were not party to the joint memo,
there was no question of implementing the order of the
Division Bench. Once having implemented and its faulty
implementation now being challenged before this Court,
the petitioner would become entitled to the reliefs that he
has sought for in the subject writ petition. For the
aforesaid reasons, the following:
ORDER
(i) The petition is allowed.
(ii) The impugned communication / letter
dated 04.02.2023 issued by the 3rd
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respondent and also the pension fixed
by the 5th respondent dated
19.04.2023 stands quashed.
(iii) The respondent within eight weeks
from the date of receipt of certified
copy of this order, correct the orders
of Pension Payment of the petitioner
and refix the pension taking continuity
of service as is observed by the
Division Bench Supra and pass
necessary orders in accordance with
law.
(iv) In the event, the State would not pass
appropriate orders in accordance with
law within the time frame of eight
weeks, the petitioner shall be entitled
to interest at the rate of 12% p.a.
from the day it fell due, till the date of
its payment.
Sd/-
JUDGE
Vnp*/Ct:Bck
