"a. Issue an order or orders or writ in the nature of writ of
Certiorari quashing the communication dated 19.06.2023
issued by the 3rd Respondent to the 6th Respondent in
No.10699 DSERT/DIET/OTH/5/2023-TECD at Annexure-L.
b. Issue an order or orders or writ in the nature of writ of
Mandamus to consider the representation dated 29.12.2023
and 06.01.2023 at Annexures - J & J1.
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c. Issue any order or orders as deems fit by this Hon'ble
Court on the facts and circumstances of the case, in the
interest of justice and equity."
2. Heard learned counsel for the petitioner, learned AGA
for respondent Nos.1 to 4 and learned counsel for respondent
Nos.5 and 6 and perused the material on record.
3. A perusal of the material on record will indicate that the
petitioner was appointed on a temporary basis with effect from
26.07.2000 in terms of Annexure- A dated 26.07.2000 in the
respondent Nos.3 and 4 - Institution, which is undisputed aided
Institution, aided by the respondent No.4/State Government. On
16.06.2011, respondent Nos.5 and 6 submitted a proposal to
respondent No.3 for extending/giving the benefit of the Grant-in-Aid
made in favour of the petitioner. The said proposal submitted by
the respondent Nos.5 and 6 to respondent No.3 was forwarded for
approval and came to be rejected vide endorsements dated
07.01.2014 and 25.02.2014, which were assailed by the petitioner
in W.P.No.19755/2014 before a co-ordinate Bench of this Court. By
final order dated 24.11.2022, a co-ordinate Bench of this Court
quashed the impugned endorsements and directed the Director of
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Department of State Educational Research and Training
(respondent No.3 herein), who was also respondent No.3 in
W.P.No.19755/2014 to secure a report as regards to the strength
of students in the year 2011-12 and to take a decision in the matter
of approval of the petitioner by granting him the benefit of the
Grant-in-Aid and to proceed further in accordance with law. The
said order dated 24.11.2022 passed by a co-ordinate Bench of this
Court in W.P.No.19755/2014 is as under:
"The petitioner, a Lecturer working in 6th respondent-
College run by fifth respondent is before this Court under
Article 226 of the Constitution of India praying to quash the
Endorsement at Annexure-A bearing No.²vÀ 2/£ÉêÀÄPÀ
¨Á/2012-13 dated 07.01.2014 issued by the third
respondent-Director and the endorsement at Annexure-B
bearing No. J¸ïJ¯ïJ£ï¹/JrJA 1/¹Dgï 66/2011-12 dated
25.02.2014 issued by the fifth respondent refusing to
approve the petitioner's appointment in sixth respondent -
College.
2. Heard the learned counsel Sri.B.S.Jeevan
Kumar for the petitioner and learned Additional
Government Advocate Sri.M.V.Ramesh Jois for respondent
Nos.1 to 4. Perused the writ petition papers.
3. Learned counsel for the petitioner would
submit that the petitioner was appointed as Lecturer in sixth
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respondent - College under Annexure-C, O.M. dated
26.07.2000 of the respondent No.5. Learned counsel
would submit that the petitioner was initially appointed on
temporary basis and subsequently, he continued as
permanent teacher of the sixth respondent - College. The
proposal of the appointment of the petitioner was forwarded
to official respondents for approval. The proposal for
approval of the petitioner's appointment is rejected under
Annexure-A dated 07.01.2014 on the ground of lack of
students strength and also on the ground that the petitioner
had crossed the age prescribed for the general category
candidates. Learned counsel for the petitioner would
contend that the age is to be taken as on the date of his
initial appointment and not as on the date of consideration
by the third respondent. As on the date of appointment of
the petitioner under Annexure-C dated 26.07.2000, the
petitioner was well within the age prescribed for general
category candidates. Thus, he submits that respondent
No.3 committed error in rejecting the proposal of the
petitioner for approval of his appointment. Further, the
learned counsel would submit that with regard to students
strength, there was sufficient students strength and based
on the students strength, the petitioner was appointed in
the year 2000. Thus, he prays for allowing the writ petition.
4. Per contra, learned Additional Government
Advocate would submit that the petitioner's case was
considered for approval and is rejected on the ground that
there is no student strength in the College and also on the
ground that the petitioner is over-aged. He invites attention
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of this Court to Annexure-D, proposal for approval of
petitioner's appointment was forwarded only in the year
2011 even though the petitioner was appointed in the year
2000. Thus, he prays for dismissal of the writ petition.
5. Having heard the learned counsel for the
parties and on perusal of the writ petition papers, I am of
the view that the age of the petitioner as on the date of
appointment by the fifth respondent - Management on
26.07.2000 (Annexure-C) is to be considered. Annexure-
C, order of appointment of the petitioner issued by the fifth
respondent dated 26.07.2000 indicates that the petitioner
was appointed as Lecturer on temporary basis.
Subsequently, it appears that the petitioner was continued
from time to time as permanent teacher in sixth respondent
- College. Always, the proposal for approval of
appointment from the aided or non-aided institutions would
be forwarded subsequent to appointment. If there is delay
in forwarding the proposal by the College, the petitioner or
candidate cannot be faulted with or he cannot suffer for the
delay in forwarding the proposal. Therefore, it would be
appropriate for the authorities to consider the age of the
petitioner for approval of appointment as on the date of his
initial appointment by the Management. Thus, I am of the
view that the respondents ought to have considered the
petitioner's appointment date for determining the eligibility
with regard to age.
6. The other ground on which the petitioner's
proposal for approval of appointment is rejected is that
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there is no required students strength for approval of
appointment. Whether there is sufficient student strength or
there is lack of student strength is a factual aspect which
cannot be gone into in this writ petition. It is for the third
respondent to call for report from the sixth respondent -
College and to take a decision with regard to student
strength and if there is sufficient student strength, the
respondent No.3 shall take a decision in the matter of
approval of petitioner's appointment. Hence, the following:
ORDER
The third respondent is directed to call for report
from the sixth respondent - College with regard to student
strength and thereafter take a decision in the matter of
approval of appointment of petitioner to sixth respondent -
College as Lecturer, in the light of the observation made
above.
The interim order dated 30.06.2014 by which the
petitioner was protected directing not to relieve him from
the post of Lecturer in sixth respondent - Institution during
pendency of the writ petition, would enure to the benefit of
the petitioner, till the third respondent takes a decision.
With the above, writ petition stands disposed of."
4. Subsequently, the said order passed by a co-ordinate
Bench of this Court in W.P.No.19755/2014, the petitioner having
submitted representations, the respondent No.3 proceeded to pass
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the impugned order/communication at Annexure-L dated
19.06.2023 rejecting the request of the petitioner, who is before this
Court by way of the present petition.
5. A perusal of the aforesaid order dated passed by a co-
ordinate Bench of this Court dated 24.11.2022, will clearly indicate
that the claim of the petitioner for granting him the benefit of Grant-
in-Aid was upheld and the limited/restricted directions issued by a
co-ordinate Bench of this Court was to respondent Nos.5 and 6 to
submit a report as regards their students strength in the year 2011-
12 and pursuant to a report in this regard being submitted by the
respondent Nos.5 and 6 to respondent Nos.1 to 4, the respondent
No.3 was directed to take an appropriate decision in this regard.
Despite the aforesaid order dated 24.11.2022 passed by a co-
ordinate Bench of this Court in W.P.No.19755/2014 upholding the
claim of the petitioner by issuing limited directions only in relation to
the strength of the students and not with regard to the other
aspects of the matter, the respondent No.3 clearly fell in error in
rejecting the claim of the petitioner by assigning reasons which are
contrary to the directions issued by this Court in the earlier round of
litigation referred to supra. As stated earlier, the only option
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available to the respondents-State was as per the order of
co-ordinate Bench of this Court, which had specifically directed the
respondent No.3 to secure/obtain a report from the respondent
Nos.5 and 6 as regard to students strength in the year 2011-12 and
thereafter, proceed further either to grant approval for extending
the benefit of the Grant-in-Aid made in favour of the petitioner or
transfer him to a different institution in terms of Rule 12 of the
Karnataka Educational Institutions (Recruitment and Terms and
Conditions of Service of Employees in Aided Colleges of Education
and Teachers' Training Institutes) Rules 2001, which reads as
under:
"12. Transfer of employees from one aided
institution to another aided institution:- (1) Transfer of an
employee can be permitted by the competent authority subject
to the following conditions
(a) that there is need for filling up the post in
terms of subject, strength and
attendance.
(b) that the vacancy so proposed for transfer is
a clear vacancy and is in accordance with the
staffing pattern.
(a) the management has clearly mentioned the
nature and cause of vacancy supported by
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facts.
(b) that an employee receiving salary grant
from Government earlier is proposed for
transfer in the place of another employee or
post which is also included in salary grant and
no employee occupying a post receiving salary
grant is proposed for transfer to an unaided
post.
(c) that both the management have consulted.
(2) The competent authority may grant permission
to transfer in the following cases:-
(a) in the case of a request by the management or
the employee for a transfer within the institution
of the same management;
(b) in the case of request by management or the
employee for a transfer to an institution of
different management, with the consent of both
the management.
Provided that in case if request by the
management or the employee for a transfer within
the institutions of the same management or
request by an employee for a transfer to an
institution belonging to a different management,
the head of the department may accord
permission for the same, subject to the condition
that in respect of transfer involving different
management, the employee earns the seniority in
the concerned institution from the date of reporting
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for duty in the new institution. However, his
service in the previous Aided Institution will count
for the purpose of salary, leave and pensionary
benefits. In all other cases of transfer effected
within the same management the services in the
previous institution shall count for seniority in the
new Institution and his service in the previous
Institution of the same management shall count for
salary, leave and pensionary benefits. Transfer
orders of the employees within the institution of the
same management or different management shall
be issued only by Director of Public Instruction
(Research and Training)."
6. Under these circumstances, I deem it just and
appropriate to quash the impugned order/communication and
dispose of the petition by issuing certain directions. In the result, I
pass the following:
ORDER
i) The petition is hereby allowed.
ii) The impugned order/communication dated 19.06.2023
issued by respondent No.3 to respondent No.6 at Annexure-L, is
hereby quashed.
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iii) In the first instance, respondent Nos.5 and 6 are
directed to submit a report as regards the students strength in the
respondent Nos.5 and 6 - Institution as existing in the year 2011-12
within a period of 6 weeks from the date of receipt of a copy of this
order.
iv) Immediately upon receipt of such a report by the
respondent Nos.5 and 6 to the respondent Nos.1 to 4, the
concerned respondent Nos.1 to 4 shall consider the claim of the
petitioner for benefit of Grant-in-Aid and pass appropriate orders in
this regard within a period of 1 month from the date of receipt of the
said report to be submitted by respondent Nos.5 and 6.
v) If for any reason, the concerned respondent Nos.1 to 4
come to the conclusion that the strength of students in the
respondent Nos.5 and 6 - Institution falls short of the requirement
contemplated in law for the purpose of extending the benefit of
Grant-in-Aid in favour of the petitioner, the concerned respondent
Nos.1 to 4 shall transfer the petitioner to any other aided institution
for the purpose of obtaining the benefit of Grant-in-Aid and pass
appropriate orders in this regard within a period of 1 month on the
date of receipt of a report from the respondent Nos.5 and 6.
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vi) It is further directed that till the concerned respondent
Nos.1 to 4 take appropriate decision/pass appropriate orders
pursuant to the present order, the interim order passed by this
Court shall continue to remain in force and operate between the
parties.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
MDS
List No.: 1 Sl No.: 3
