JAYARAMA SHETTY SON OF SANJEEVA SAMANI Vs. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGLAORE-560001 AND OTHERS

JUDGEMENT

(1.) PETITIONER has sought for a direction to the second respondent to modify and substitute the date of approval of the appointment of the petitioner w.e.f. 5.2.1993 instead of 19.3.2012 as per Annexure -A. Case of the petitioner is that, petitioner was appointed as a Physical Education Instructor on 5.2.1993. Since his appointment was not approved, he filed a writ petition before this Court in W.P. No. 12187/2001. The said writ petition came to be allowed by order dated 31.3.2005 wherein this Court issued a direction directing the respondent Nos. 2 and 3 therein to consider the request of the petitioner for approval of his appointment and in case the appointment of the petitioner is approved, the competent authority is directed to grant all other consequential benefits which flows there from, as envisaged under the mandatory provisions of the Education Act and Rules and also taking into consideration the notifications issued by Government from time to time.2. After the said direction, again request of the petitioner was rejected, he was once again before this Court in W.P. No. 1 1053/2006. Even the said writ petition was also allowed by order dated 11th April 2007 and similar direction was issued to the respondents therein. Despite the second direction when the matter was again considered, the respondents rejected the claim of the petitioner for approval, as such, he was again forced to file another W.P. No. 36116/2009. This Court disposed of the said writ petition by order dated 10.2.2011. While disposing of the said writ petition, this Court categorically considered the continuous filing of the writ petitions and the grievance of the petitioner, wherein it was observed as under: However, entirely different reason is found out by the first respondent to deny appointment to the petitioner Afresh ground of denial is that the School did not have adequate students' strength, as in the year 2005. Such a reasoning assigned by the first respondent cannot be accepted inasmuch as, the same is illegal and arbitrary. The relevant period is the year of appointment i.e., the year 1992 -93. As on the year 1992 -93 and for subsequent eight years the students' strength is more than 400. Merely, because the students' strength was reduced after 15 years, the appointment made to vacant post, that too after getting sanction by the competent authority, cannot be cancelled. The petitioner should not be made to suffer without any fault of him. Since the petitioner's appointment was entitled to be considered for approval, based on the fact situation found in the year of appointment, the first respondent is wholly unjustified in taking into consideration the less students' strength in the recent years. Even if the students' strength is less, the first respondent after approval of the appointment of the petitioner, could have transferred him into some other Institution, having aid. Accordingly, the impugned order therein was quashed. It is not in dispute that, the petitioner was appointed in 1993. It is also not in dispute that, when he was appointed, the concerned School had a requisite strength of students and had continued so. However, subsequently after nearly 15 years, it appears that the strength of the students has come down, what was sought to be approved is the appointment of the petitioner as on the date when he was appointed and if the relevant facts have to be considered, the relevant facts as of then should have been taken into consideration. However, same having not been considered, this Court in categorical terms has issued a direction in W.P. No. 36116/2009, no more direction could have been necessary for the respondents to consider the grievance of the petitioner. Now it is too late to issue direction to the respondents. Hence, in my opinion, instead of issuing direction, respondents are to be made to comply with the direction already issued by this Court in W.P. No. 36116/2009. Accordingly, I pass the following; ORDER The writ petition is allowed. The appointment order of the petitioner be substituted as 5.2.1993 instead of 19.3.2012 as early as possible not later than two months from the date of receipt of copy of this order. In law, if the petitioner is entitled for any other benefit, same may be accorded accordingly.