Karnataka High Court
Sri Shekhar H Salimani vs The Principal Secretary on 2 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 105369 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.105369 OF 2021(S-R)
BETWEEN:
1. SRI SHEKHAR H SALIMANI S/O. HANAMAPPA,
OCCUPATION HEAD MASTER(RETIRED),
SHREE K.V. SHANTHAGIRIMATH HIGH SCHOOL
RON, RON TALUK, GADAG DIST - 582 209,
R/O: DOOR NO. 220, 1ST FLOOR,
GAMANAGATTI ROAD, SHIVANANDNAGAR,
NAVANAGAR, HUBBALLI - 580 025.
SINCE DEAD BY HIS LRS.
A. SMT. SHNATHA S. SALIMANI,
W/O. LATE SHEKHAR H. SALIMANI,
AGED ABOUT 58 YEARS.
B. SRI AVINASH S. SALIMANI,
S/O. LATE SHEKHAR H. SALIMANI,
AGED ABOUT 35 YEARS.
Digitally signed
C. SRI AKASH S. SALIMANI,
by V N BADIGER
Location: High
S/O. LATE SHEKHAR H. SALIMANI,
Court of
Karnataka
AGED ABOUT 33 YEARS.
D. SMT. PRIAYNKA S. SALIMANI,
S/O. LATE SHEKHAR H. SALIMANI,
AGED ABOUT 31 YEARS.
ALL ARE R/O NO.220, SHANTHI PRIYA
NILAYA, SHIVANANDNAGAR,
GAMANAGATTI ROAD, 2ND CROSS,
NAVANAGAR, HUBBALLI - 580 025.
...PETITIONER
(BY SRI SUNILKUMAR BANGARI, ADVOCATE)
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WP No. 105369 of 2021
AND:
1. THE PRINCIPAL SECRETARY,
TO THE GOVERNMENT KARNATAKA
SECRETARIAT DEPARTMENT OF EDUCATION,
(PRIMARY AND SECONDARY),
6TH FLOOR, 2ND GATE, M.S. BUILDING,
BENGALURU - 560 001.
2. THE ADDITIONAL COMMISSIONER,
OFFICE OF THE COMMISSIONER,
FOR PUBLIC INSTRUCTION,
DIET CAMPUS, KCD ROAD,
DHARWAD - 580 008.
3. THE DEPUTY DIRECTOR,
DEPARTMENT OF PUBLIC INSTRUCTIONS,
GADAG DISTRICT MINI VIDHANA SOUDHA
HUBLI ROAD, GADAG - 582 103.
4. THE BLOCK EDUCATION OFFICER(BEO),
DEPARTMENT OF PUBLIC INSTRUCTIONS,
RON TALUK, GADAG DIST - 582 209.
5. THE CHAIRMAN, SRI SIDRAMESHWAR
VIDYAVARDHAKA SAMSTHE,
BAGALKOTE C/O SHREE SHIVANANDNAGAR
EXTNSION, RON, GADAG DISTRICT - 582 209.
...RESPONDENTS
(BY SRI P.N.HATTI, HCGP FOR R1 TO R4;
NOTICE TO R5 IS SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI
TO QUASH THE IMPUGNED ORDER PASSED BY THE RESPONDENT
NO.1 DATED 30/07/2021 IN REVISION PETITION NO.03/2021
(ED/02/SOH/2021) PRODUCED VIDE ANNEXURE-G AND ETC.,
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WP No. 105369 of 2021
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is filed by the original petitioner
Sri.Shekhar H Salimani aggrieved by the order dated
30.07.2021 passed by the respondent No.1 in revision
petition No.3/2021 as per Annexure-G seeking the
following reliefs:
"(a) Issue writ of certiorari to quash the impugned
order passed by the respondent no.1 dated
30/07/2021 in revision petition no.03/2021
(ED/02/SOH/2021) produced vide ANNEXURE-G.
(b) Issue writ of certiorari to quash the impugned
order passed by the respondent no.2 dated
23/11/2020) (02/11/2020) in appeal no.03/2019-
20 produced vide ANNEXURE-F.
(c) Issue writ of certiorari to quash the impugned
approval letter accepting the reducing petitioner's
basic pay of scale reducing to Rs.800/- pm from
basic pay of scale of Rs. 1050-1950 pm with
retrospective effect from 01.08.1986 by the 3rd
Respondent vide letter dated 14/08/2019 bearing
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reference No.A2. AKhaProuSha: HM: Mu: Shi:
Vethan: 143: 2015-16 produce as annexure-D.
(d) Issue writ of certiorari to quash the impugned
recommendation letter submitted by the 4th
Respondent vide recommendation letter dated
21/09/2021 bearing reference no.C3/S.H.S./
NiVeMaM/ ShreeKVShamProuSha/Ro/2019-
20/756 for approval of the 3rd respondent
produced vide as ANNEXURE-H.
(e) Issue writ in the nature of mandamus directing
the respondent to confirm petitioner appointment
as a Head master and confirm new revised pay
scale of Head master and release stagnation
increment withheld from 01/08/2016 to
01/08/2018 further direction against the
Respondents to release Revised scale of pay to
the Head master as per proposal made by the
Shri Sidrameshwar Vidyavardhak Samsthe
Bagalkot produced as ANNEXURE-E and further
direct the Respondents to settle and pay to the
petitioner his pension, pensionary benefits and
other pecuniary benefits arising from the services
of the petitioner forthwith."
2. The original petitioner Sri.Shekhar H.Salimani
passed away, leaving behind his wife and children, who
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are already brought on record as petitioner No.1(A) to
petitioner No.1(D).
3. Brief facts of the case are that, the petitioner
was appointed directly to the post of Head Master in a
newly started Sri Sharanabasaveshwar High School,
Rajoor on 16.04.1985 and that his appointment was
approved by the respondent No.3-DDPI vide the order
dated 16.04.1985, fixing the basic pay scale to Rs.750-
1500. His pay scale was revised to Rs.1050-1950 per
month on and from 04.08.1986. He also secured his
increment time to time. By communication dated
30.06.2016 respondent No.2 called upon respondent No.3
to verify the case of petitioner and follow appropriate
procedure in refixation of the basic pay of scale of the
petitioner. Respondent No.4 refixed the pay scale reducing
to Rs.800/- from the basic pay scale of Rs.1050-1950 per
month and sent the same to respondent No.3 for his
approval. Respondent No.3 accepted to reduce the pay
scale to Rs.800/- per month. On 11.09.2019, Chairman of
Sri Siddrameshwar Vidya Vardhak Sangh submitted
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representation to the 1st respondent. Aggrieved by the
acceptance of reduction of pay scale to Rs.800/- from the
basic scale of Rs.1050-1950 per month by the 3rd
respondent, the petitioner preferred an appeal before the
Additional Commissioner for Public Instructions and
Appellate Authority at Dharwad /respondent No.2 herein in
appeal No.3/2021. By that order, respondent No.2
dismissed the said appeal filed by the petitioner. The
petitioner preferred a revision petitioner before the 1st
respondent against the order passed by the 2nd
respondent. Even the said revision petition came to be
dismissed by order dated 30.07.2021.
4. That the Government of Karnataka by order
dated 31.01.2001, effected amendment to Rule 3 of the
Karnataka Educational Institutions (Recruitment and
Terms and Conditions of Service of Employees in Private
Aided Primary and Secondary Educational Institutions)
Rules, 1999, giving effect to the said Rules from the date
of its publication.
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5. Things stood thus, respondent No.4 issued a
communication dated 21.09.2021 seeking recovery of
excess payment of Rs.16,06,229/- from the petitioner in
83 equal installments out of the pension fixed per month
for Rs.39,100/-. Being aggrieved by the same, petitioner is
before this Court.
6. Learned counsel for the petitioner taking this
Court through various the documents produced along with
petition submits that petitioner was appointed against the
sanctioned post by following the due process and his
appointment was even approved by respondent No.3
admitting him to the pay scale of Rs.750-1050 payable to
the Head Master as of 1985. He submits that the said pay
scale was revised and enhanced to Rs.1050-1950 and
petitioner received periodical increment accordingly. That
the last drawn salary of the petitioner is Rs.88,300/- that
is based on the pay scale of Rs.1050-1950 per month fixed
as per the statement produced at Annexure-D1.
7. Counsel for the petitioner further vehemently
submit that the Government Circular relied upon by the
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respondent authorities to reject the representation of the
petitioner was brought into effect on and from 31.01.2001
and the same was not in vogue at the time when
petitioner was appointed, as such, he submits that the
conditions/qualifications prescribed for the post of Head
Master of School under the said Circular is not applicable.
Therefore, the respondent authorities committed illegality
and irregularity in revising and reducing the pay scale of
the petitioner and further erred in directing recovery of
excess payment. That the appellate authority and the
revisional authority have not adverted to these aspects of
the matter resulting in illegality and miscarriage of justice.
8. Learned counsel for the petitioner relies upon
the judgment of the Apex Court in the case of State of
Punjab and Others Vs.Rafiq Masih (White Washer)
and Others reported in (2015)4 SCC 334.
9. Per contra, learned HCGP referring to Rule 45 of
the Grand-in-Aid Code for Secondary Schools submit that
the very appointment of the original petitioner to the post
of Head of the Institution was illegal and the very
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appointment being illegal, petitioner cannot derive the
benefit of the same.
10. Learned HCGP further submits that the
judgment of the Apex Court in the case of Rafiq Masih
(supra) relied upon by the petitioner is not applicable to
the facts of the case. Hence, seeks for dismissal of the
petition. He further submits that at the time of
appointment of the petitioner as Head Master, he was
aged just 25 years and the School was being run by his
brother who stated to have passed away and thereafter
the petitioner himself was running the Institution. Now
upon the death of the petitioner, School is run by his legal
representatives. Thus, learned HCGP submits that the
malafide intent of the petitioner can be inferred from this
undisputed facts and circumstances of the matter by which
the petitioner had derived undue benefit and advantage of
drawing the salary by illegally having been appointed to
the post of Head Master contrary to provisions of Section
45 of the Act now to the Circular dated 31.01.2001.
11. Heard. Perused the records.
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12. There is no dispute of the fact that the
Institution namely Sharanabasaveshwar High School,
Rajoor was being run by the brother of the original
petitioner at the time when he was appointed as Head
Master of the School i.e., on 16.04.1985. It is also
admitted that the said School was admitted to Grant-in-
Aid even as on 16.04.1985.
13. Rule 45 of the Grant-in-Aid Code for Secondary
Schools reads as under:
"45. "Appointment.-Applications shall be invited by
advertisement by the management in respect of
vacancies of more than six months duration. A copy of
the advertisement shall be sent to the concerned Joint
Director of the Division.
While making the appointment of the Heads of the
Institution, the management should give consideration
to the senior and qualified persons already working in
the school or schools under the same management.
Unless the senior-most member of the staff is
unsuitable for the post due to valid reasons, his claims
should not be passed over. However, the Assistant
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Master to be promoted as Head Master should be a
trainee graduate with at least five years of teaching
experience.
The District Deputy Directors of Public
Instruction who are the Authorities competent to
approve the appointment of Head Masters/Head
Mistresses, appointed by the managements of Private
Aided High Schools, are also competent to approve the
in-charge appointments made against the posts of
Head Masters/Head Mistresses in Aided High Schools
and sanction the charge allowance at the rates as
allowed in the case of Government Institutions.
(a) Applications will be considered by a
selection committee consisting of the representatives of
the Managing Committee, Head of the Institution and
one Educationist nominated by the Managing committee.
The Selection Committee shall recommend a panel of
names and arrange them in the order of merit in respect
of each appointment and the Managing Committee shall
make the appointment. If the Managing Committee
make the appointment not in accordance with the order
of merit they shall record the reasons in writing, subject
to the approval of the Department. Preference shall be
given to trained teachers. Teachers adequately qualified
to teach the subject concerned shall be appointed.
(b) The salary of pensioners re-employed in
aided educational institutions, if any will be regulated in
accordance with the service rules prescribed by
Government for such category of persons. No person
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above the age of 60 years shall be continued or
entertained.
14. Thus, the aforesaid provisions of Section 45
makes it clear that while making appointments of the
Heads of the Institutions, certain aspect have to be kept in
mind as provided thereunder including the teaching
experience of atleast five years, before appointing to the
post of Heads Master of the Institutions.
15. In the instant case, as seen at Annexure-A
which is an order dated 16.04.1985 the petitioner was
aged 26 years. There is nothing on record to show that the
petitioner had acquired qualification as prescribed under
Rule 45 extracted hereinabove to be appointed to the post
of Head Master.
16. Though the approval is accorded to the
appointment of the petitioner, by communication dated
30.03.2016 as per Annexure-C, the Additional
Commissioner Office of the Commissioner for Public
Instructions, Dharwad had instructed the Deputy Director,
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Gadag to take action in the matter of appointment of the
petitioner to the post of the Headmaster without he having
had five years experience in teaching.
17. That by communication dated 14.08.2019, the
Deputy Director (Administration) Public Instruction had
directed the Block Education Officer (BEO), Department of
Public Instructions, Ron to look into the appointment of
the petitioner made on 27.08.1984 and subsequent
approval granted though he did not have five years of
required experience and to revise the pay-scale of the
petitioner, reducing the same as found at Annexure-D1.
18. It is this order which has led to petitioner filing
an appeal under Section 130 of the Education Act, 1983,
before the Appellate Authority who on appreciation of the
material placed on record held that the appointment of the
petitioner to the post of Headmaster was contrary to the
provisions of law and that his appointment to the post of
Headmaster was thus, irregular and thus declined to show
indulgence in the appeal and accordingly dismissed the
same.
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19. Aggrieved by the same, the petitioner preferred
a revision petition before the respondent-Government
under Section 131 of the Act, which on re-appreciation of
the material produced before it, dismissed the said
revision petition upholding the order to recover the excess
amount in monthly installment.
20. In view of the aforesaid provisions of law and
admitted position of fact, the submission that the Rules
dated 31.01.2001 are not applicable to the petitioner,
cannot be countenanced. Even in the absence of said
Rules dated 31.01.2001, case of the original petitioner
cannot be accepted as the very Rule 45 of the Grant-in-Aid
Code was in force when the original petitioner appointed
and admittedly the appointment of the petitioner is
contrary to said provision.
21. At any rate, what is sought to be recovered is
the excess payment made to the post of Headmaster while
the pay-scale in respect of Assistant Teacher is held to be
payable to the petitioner.
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22. In that view of the matter, this Court do not see
any grounds warranting interference. Accordingly, the
petition is dismissed.
SD/-
JUDGE
KGK - para 1 to 13
SMM - para 14 to till
CT-ASC
