Karnataka High Court
Sri B K Srinivasa vs Bangalore University on 25 October, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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WP No. 24541 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO. 24541 OF 2023 (S-RES)
BETWEEN:
SRI. B K SRINIVASA
S/O LATE B R KRISHNA MURTHY RAO
AGED ABOUT 63 YEARS
TECHNICAL ASSISTANT(RETD.)
DEPARTMENT OF MATHEMATICS
BANGALORE UNIVERSITY
R/AT NO.305, 10TH MAIN
3RD BLOCK, JAYANAGAR
BANGALORE-560 011.
...PETITIONER
(BY SMT. KUMARI M., ADVOCATE)
AND:
BANGALORE UNIVERSITY
GNANABHARATHI
BANGALORE-560 056
Digitally REP. BY ITS REGISTRAR.
signed by ...RESPONDENT
SUMA B N
(BY SRI. B PRAMOD., ADVOCATE)
Location:
High Court
of Karnataka THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RELEVANT
RECORDS FROM THE RESPONDENT UNIVERSITY AND DIRECT THE
RESPONDENT UNIVERSITY TO GRANT UGC/AICTE PAY SCALE TO THE
PETITIONER RETROSPECTIVELY, BY CONSIDERING HIS
REPRESENTATION DATED 27.09.2023 VIDE ANNEXURE-P AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV
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WP No. 24541 of 2023
ORAL ORDER
The petitioner has filed the present writ petition
seeking issuance of writ of mandamus directing the
respondent -University to grant UGC/AICTE pay scale
retrospectively, by considering the representation at
Annexure -P dated 27.09.2023. Petitioner has also sought
for a direction to the respondent-University to grant all
consequential benefits pursuant to extension/continuation
of two years service by virtue of the interim order dated
19.12.2019 passed by this Court in W.P.No.9582/2019 by
considering the representation at Annexure-P.
2. It must be noticed that the petitioner was
appointed as a Technical Assistant which fact is not in
dispute. However, the petitioner had taken up the stand
that the petitioner despite being appointed as a Technical
Assistant was also imparting instruction and performing
functions of teaching practical class to the students and
accordingly had challenged the endorsement dated
19.03.1998 whereby the petitioner was treated as not
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being eligible for the benefits which was admissible to
category of vacation enjoying staff. Further consequential
relief was sought in the said writ petition consequent to
setting aside of the communication of 19.03.1998 to
consider representation to treat his post as that of a
teacher in the University and to grant all consequential
benefits.
3. The said writ petition came to be disposed off by
order dated 15.07.1998 whereby the University was
directed to reconsider representation after examining all
material, as to whether the petitioner was giving
instruction to students in practical classes as a part of his
normal duties. In the light of the same, the learned Single
Judge disposed of the writ petition reserving liberty to the
petitioner to make a representation setting out the nature
of normal duties which had been discharged.
4. Consequent to such direction the Bangalore
University has passed a endorsement dated 08.10.1998 at
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Annexure-H which is a detailed endorsement and has
adverted to his appointment as of a Technical Assistant
and referring it to be a `non teaching post'. It is
specifically observed in the said endorsement that his work
is `neither teaching theory in the class room nor in the
computer laboratory', his job is to assist the students to
use the Data Entry Machine and Computers. It was
observed that he assists in the laboratory where the
teachers would be conducting practicals. It was
concluded in the said endorsement as follows:
"The Post of Technical Assistant is a non-teaching
one and so he cannot be granted benefits attached
to the teaching posts".
5. It must be noticed that subsequently petitioner
filed W.P.No.9582/2019 seeking various reliefs including
setting aside of the Notification dated 22.11.2018. The
said writ petition came to be disposed of while noticing
that the petitioner had not challenged the endorsement
dated 08.10.1998. Paragraph 7 reads as follows:
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"7. Though the learned counsel appearing for the
petitioner has referred to the various judgment
passed by this Court at Annexures- J1 to J3, to
substantiate that the post of Technical Assistant
could be considered as a Teaching Post, however,
taking into consideration the observation made by
this Court, in W.P.No.8903 of 1998 dated
15.07.1998, wherein, the petitioner has challenged
order dated 19.03.1998, declaring the action of the
respondent-University herein treating the petitioner
as non-teaching staff of the University and this court,
by order dated 15.07.1998 directed the petitioner to
make a representation to the respondent-authorities.
Pursuant to the same, the petitioner has approached
the respondent-University and the respondent-
University by Endorsement dated 08.10.1998
(Annexure- R3) has rejected the claim made by the
petitioner for consideration of the case of the
petitioner as a Teaching Faculty. Having gone
through the averments made in the writ petition,
nothing has been disclosed by the petitioner in the
writ petition about filing of the said writ petition by
the petitioner before this Court in W.P.No.8903 of
1998 seeking similar relief and the rejection of the
same by Endorsement dated 08.10.1998 in the
present writ petition. Taking into consideration the
factual aspects on record that, the petitioner has not
brought to the notice of this court and approached
the court with clean hands. Nowhere it is stated in
the writ petition, about order passed by this Court in
W.P.No.8903 of 1998, and the rejection of the claim
made by the petitioner as per Endorsement dated
08.10.1998. In that view of the matter, the writ
petition is liable to be dismissed for suppression of
material facts, that too, claiming similar relief in this
writ petition. Though the learned counsel appearing
for the petitioner argued that the present writ
petition is filed only for pensionary benefits,
however, leaving out the material facts rejection of
the same as per Annexure-R3 amounts to
suppression of the material facts, and therefore, the
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petitioner is not entitled for discretionary
relief/equitable relief under Article 226 of
Constitution of India. In that view of the matter, writ
petition is dismissed with exemplary cost of
Rs.50,000/- payable by the petitioner to the
Karnataka State Legal Service Authorities within four
weeks from the date of receipt of certified copy of
this order. Registry is directed to send copy of this
order to the Karnataka State Legal Service Authority,
Bangalore for further action."
6. Said matter was taken up in appeal in
W.A.No.843/2023 which has also been disposed off in
terms of the observations made at paragraphs 3 and 4
which is as follows:
"3. We have perused the material placed on record
particularly, copy of the order dated 15.07.1998
passed by a learned Single Judge in
W.P.No.8903/1998 filed by the appellant which is
placed on record at Annexure-R2 and the prayers,
statements made in paragraph 6 of memorandum of
W.P.No.9582/2019 giving reference to filing of
W.P.Nos.12266/1981, 5170/2022, 10545/2005,
13203/2005, 12481-12482/2014, 31788/2016,
13666/2017 and W.A.No.8746/1996 to submit that
similarly circumstanced persons were before this
Court and these said matters were filed right from
the year 1981 to 2017. The learned Single Judge has
considered the above matters in all respect at the
time of dismissal of W.P.No.9582/2019 on the facts
which cannot be faulted with. Therefore, the present
writ appeal being meritless deserves to be dismissed.
4. At this stage, we state that admittedly, the
appellant was working as a Technical Assistant in the
Department of Mathematics, Central College
Campus, Bangalore University and the learned Single
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Judge has imposed exemplary costs of Rs.50,000/-
payable by the appellant to the Karnataka State
Legal Services Authority within a stipulated period of
four weeks from the date of receipt of copy of the
order. We, therefore, deem it appropriate to reduce
the costs. The appellant is directed to pay the
exemplary costs of Rs.10,000/- to the Karnataka
State Legal Services Authority within four weeks
from today. Except this variation in the costs, the
order dated 06.06.2023 passed by the learned Single
Judge in W.P.No.9582/2019 is upheld. Accordingly,
the writ appeal is disposed of."
7. Petitioner has now come up before this Court and
he is seeking for the relief as referred to above.
8. It must be noticed that admittedly the
endorsement dated 08.10.1998 has not been challenged.
By virtue of the said endorsement, the petitioner was not
considered to be eligible for the benefit of a teaching staff
and it was specifically observed that his post of Technical
Assistant was a non-teaching post. It is not in dispute
that the UGC/AICTE pay scale was only in relation to
teaching staff. If that were to be so, the petitioner cannot
claim benefits without challenging the endorsement dated
08.10.1998.
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9. Though the learned counsel for the petitioner has
averred that the foremen working in the University have
been granted UGC/AICTE pay scale, however, that
question cannot be reopened at present considering the
observations made in the writ appeal at paragraph 3. In
the writ appeal at paragraph 3 the Division Bench refers to
authorities relied upon by the petitioner in its order and
rejects the matter on merits as well. The orders at
Annexure-N and N1 relied on by the petitioner were dated
21.07.2011 and 17.12.2019. While admittedly petitioner
has retired in 2021. Petition itself has been filed in the
year 2023. Seeking of relief in installments cannot be
permitted. Hence the relief that the petitioner seeks that
was eligible for being extended UGC/AICTE pay scale on
grounds other than that he was doing work as a teaching
staff ought to have been raised and decided in the first
round itself and if that were to be so second round of
litigation at this stage is impermissible.
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10. Though learned counsel for petitioner submits
that if in the first round of litigation petitioner is non-
suited only on the ground of suppression of material facts,
the second round of litigation ought to consider the case of
the petitioner on merits, by placing reliance on the order
of the Apex Court in the case of ARUNIMA BARUAH VS
UNION OF INDIA AND OTHERS reported (2007)6 SCC
120.
11. It must be noticed that till date the endorsement
dated 08.10.1998 still remains without being challenged.
If it is the case of the petitioner that despite such
endorsement still the petitioner is entitled to pay scale of
UGC/AICTE such grounds cannot be considered in the
present round of litigation and it is constructively barred
by virtue of the order of the Division Bench in the later
proceedings. It also ought to be noticed that despite the
petitioner being a Technical Assistant and had attained
superannuation being a non teaching staff at 60 years by
virtue of the interim order passed in W.P.No.9582/2019
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the petitioner was permitted to work beyond the period of
superannuation for non teaching staff at 58 years for a
further period of two years and admittedly salary has been
paid.
12. Needless to state that the continuance of service
for two years pursuant to the interim order cannot result
in the said period being counted for service for pension as
well in the light of dismissal of W.P.No.9582/2019.
Accordingly this Court finds that the present proceedings
cannot be permitted to be entertained so as to result in
reopening the right of reconsideration of the petitioner to
be granted UGC/AICTE pay scale.
13. Needless to state the petitioner submits even as
per his own pay scale without considering the claim of
UGC/AICTE even his leave encashment has not been
considered and paid. The said aspect is kept open for the
University to consider, if leave encashment even as per
admitted pay scale and service conditions of the petitioner
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is not considered. Accordingly petition is disposed of.
Such claim of earned leave encashment to be considered
in accordance with law by the University within a period of
eight weeks from the date of receipt of certified copy of
this order while clarifying that such consideration would be
without taking note of two years service put in by the
petitioner pursuant to the interim order passed in the writ
petition No.9582/2019.
SD/-
(S SUNIL DUTT YADAV)
JUDGE
SBN
