Karnataka High Court
The Secretary vs Smt.Sunita W/O Shivalingayya Salimath on 26 June, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 108439 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.108439 OF 2018(EDN-RES)
BETWEEN:
1. THE SECRETARY,
JANATA SEVA EDUCATION SOCIETY,
JULY NAGAR, GANGAVATHI,
DIST: KOPPAL.
2. ADMINISTRATOR,
JANATA SEVA EDUCATION SOCIETY,
JULY NAGAR, GANGAVATHI,
DIST: KOPPAL.
...PETITIONERS
(BY SRI B. SHARANABASAWA, ADVOCATE)
AND:
SMT. SUNITA W/O. SHIVALINGAYYA SALIMATH,
AGED ABOUT: 52 YEARS,
OCC: LECTURER IN KANNADA,
Digitally signed JSSS, D.ED. COLLEGE,
by V N
BADIGER JULY NAGAR, GANGAVATHI,
Location: High
Court of
DIST: KOPPAL.
Karnataka ...RESPONDENT
(BY SRI M. C. HUKKERI AND
S.D.BABALADI, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI, BY QUASHING/SETTING - ASIDE THE
JUDGMENT & ORDER DATED 23.10.2018 PASSED BY THE DISTRICT
JUDGE AT KOPPAL, IN E.A.T APPEAL NO.1/2014, VIDE
ANNEXURE-"G" AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 108439 of 2018
ORDER
Petitioner-Society is before this Court aggrieved by
the order dated 23.10.2018 passed in EAT Appeal
No.1/2014 on the file of District Judge and Education
Appellate Tribunal, Koppal (for short, hereinafter referred
to as 'EAT').
2. By the said judgment the appeal filed by the
respondent herein under Section 94(1) of the Karnataka
Education Act, 1983 came to be allowed, granting the
following relief;
"The impugned order served on the appellant
dated 22.08.2014, No.-NIL- issued by respondent
No.2, is declared as illegal, null and void and not
operative against the appellant and it is set aside.
Respondents No.1 and 2 are hereby directed
to accommodate and to continue the service of
appellant in their institutions by providing
alternative 'and substitute post, as appellant is
found entitled to at par with post of Kannada
Lecturer, considering her qualification in the
institution run by them, within two months from
today.
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Further respondents No.1 and 2 are hereby
directed to pay the financial benefits by paying
requisite basic salary, which was prevailing in the
year 2007 to 2012 by paying basic salary of
Rs.8,825/- and revised pay scale in the month of
April 2012 of Rs.17,650/- to the appellant as per the
Government Notification, issued in ED/104/
SEP/2005, Bengaluru, dated 12.1.2006, to the
appellant, the scale applicable to her(Lecturer in
D.Ed college) till she attains the age of
superannuation.
The respondents No.1 and 2 are hereby
directed to comply this order, within a period of
Three months, from the date of this order and to
inform the appellant of appointing her to any
suitable alternative post, in the institutions run by
the respondents No.1 and 2 and to comply the other
relief, ordered in favour of appellant, within
reasonable time.
In case respondents No.1 and 2 not complied
the order granted in this appeal, wherein, the
appellant is at liberty get execute the order against
the respondents No.1 and 2 through process of law,
before competent forum."
3. Case of the petitioner-society is that it's started
D.Ed. College in the year 2005 and the respondent was
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appointed to the post of Kannada Lecturer on 21.12.2006.
The said appointment was approved by the authorities.
That since there was no improvement in the admission of
the students to the college, the petitioner-society resolved
to close down the said course effective from 18.06.2014.
Since the college was closed, by communication dated
31.07.2014 respondent was relieved from her service.
Aggrieved by the said communication respondent herein
preferred the above appeal and that the EAT as per the
order referred to above allowed the said appeal filed by
the respondent herein. Aggrieved by the same, petitioners
are before this Court.
4. Learned counsel appearing for the petitioners
reiterating the grounds urged in the memorandum of
petition submits that; the petitioner-institution did not got
sufficient opportunity to lead evidence before the EAT as
such an opportunity be provided. That though there is no
rule providing for appointment of respondent in any of the
other institutions of the petitioner-society, the respondent
was given an option to apply for any of the post in the
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other institutions run by the petitioner-society in view of
closure of D.Ed. College and that since she did not opt for
the said offer by filing necessary application, by the
impugned communication she was relieved from her
service.
5. That even prior to issuance of the impugned
communication, two communications were issued to the
respondent on 16.07.2013 and 22.07.2013, by which it
was brought to the notice of the respondent that two of
the teacher who were working along with the respondent
were accommodated in other institutions and since the
respondent had not opted the offer made by the
petitioner-institution, and since there were about seven
students continuing their course in the second year, till
completion of their course the respondent was permitted
to continue to work as a teacher. He submits since the
D.Ed. course was closed and the respondent was informed
about the closure, there was no requirement for
conducting any enquiry or giving opportunity of being
heard to the respondent. Thus, it is his submission that
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the EAT passed the impugned order on a completely
erroneous premise of violation of principle of natural
justice warranting interference.
6. Learned counsel for the petitioner-society
further submits that the further direction issued by the
EAT directing the petitioner-society to pay the salary to
the respondent equivalent to the salary payable to the
government staff and basic pay scale payable to staff of
government lecturers and aided institution lecturers, is not
applicable as the said notification has been set aside.
7. That though statement of objection were filed
before the EAT, the respondent could not examine any
witness or led any evidence. Thus, he submits that an
opportunity be granted to the petitioner to present his
case before the Tribunal.
8. Per contra, learned counsel for the respondent
submits that the appointment of the respondent was
against the sanctioned post and it was permanent and she
has rendered service over seven years and that she was
not given any option/opportunity to apply for the alternate
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post in any of the institutions of the petitioner-society as
contended. That five of the employees who were working
along with the respondent have been accommodated by
the petitioner-society in the other institution run by the
petitioner-society and the respondent has been selectively
discriminated causing prejudice to her rights.
9. Learned counsel for the respondent further
brings to the notice of this Court the order dated
10.04.2019 passed by this Court by which this Court
directed the petitioner-society to place on record list of all
institutions established by the petitioner-society, sanction
strength of the employees in each of the institutions and
the working strength of the employees, for the purpose of
finding out the possibility of working out equities in favour
of the respondent. Thus, he submits even the said order
has also not been complied with.
10. In response, the learned counsel for the
petitioner-society brings to the notice of this Court a
memo dated 10.06.2019 filed before this Court along with
copy of the resolution of Board Meeting dated 08.05.2019.
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Referring to the same, learned counsel submits that since
there were no vacancies available in any of the institutions
run by the petitioner-society, it was unanimously resolved
that the case of the respondent would be considered on
humanity ground in future if there arises any vacancy.
11. The learned counsel for the respondent also
fairly submits that since the petitioner-society has not
furnished the records with regard to the sanction strength,
actual working strength and the details of the institutions
run by the petitioner-society as directed by this Court, and
since the petitioner-society seeks an opportunity to
produce those documents, the matter may be relegated to
the EAT with a specific direction consider the documents
and pass appropriate orders.
12. Submission is taken on record.
13. The admitted facts are that the respondent
being employee of the petitioner-society has been relieved
from her service effective from the year 2014 on the
premise that D.Ed. College has been closed by the
petitioner-society for want of students. It is also admitted
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fact that some of the teaching and non-teaching staff have
been accommodated by the petitioner-society in the other
institutions run by the petitioner-society.
14. The disputed facts are that the respondent was
not given similar opportunity for applying for the
equivalent job in any of the institutions run by the
petitioner-society.
15. Further as noted above, this Court by order
dated 10.04.2019, had also directed the petitioner-society
herein to submit the records pertaining to the sanction
strength, the working strength, and the details of the
institutions run by the petitioner-society to look at the
possibilities of accommodating the respondent. However,
the resolution passed by petitioner-society produced with
the memo dated 10.06.2019 would reveal that the
petitioner-society had resolved to consider the request of
the respondent at a future point in time. That EAT in its
order has specifically directed the petitioner-society to
provide alternate and substitute post and to pay basic
salary prevalent at the relevant period. It is also on record
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that the respondent has not led any evidence before the
EAT.
16. In view of the aforesaid factual aspect of the
matter, this Court is a considerable view that the matter
be relegated to the EAT for the purpose of providing an
opportunity to the petitioner-society to furnish records
pertaining to the petitioner's management with regard to
the sanction strength of employees, working strength of
employees, a number of institutions working under it, and
also to examine the issue with regard to the
communication, if any, issued by the petitioner-society
calling upon the respondent to opt for any eligible job in
any of its institution.
17. The EAT shall on consideration of said
documents/records and pass appropriate orders, after
affording sufficient opportunities to the parties.
18. In that view of the matter, the impugned order
is set aside. Matter is remitted with the directions as
above. The tribunal shall dispose off the matter within
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outer limit of three months from the date of receipt of the
certified copy of this order.
19. Accordingly, petition is allowed.
20. In view of disposal of the petition, pending
applications, if any, does not survive for consideration.
SD/-
JUDGE
SMM/CT-ASC
