B K SUNITHA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioner in this petition, has sought for a direction, directing the respondents to release the salary grant/aid in respect of the appointment of the petitioner, without insisting the requirement of approval of the appointment of the petitioner as held by the Hon'ble supreme Court in the decision in Laxman Dundappa Dhamanekar and another v Management of Vishwa Bharata Seva Samiti and Another and grant all consequential benefits flowing therefrom, including arrears of salary, increments, seniority and other benefits.

(2.) THE petitioner claims to be a B. A. and B. Ed, graduate. The fifth respondent herein- management is running an Educational Institution. The third respondent has issued notification for appointment of 'assistant Mister' in the Educational Institution run by the fifth respondent OH 21st January, 1999. In pursuance of the said Notification, the fifth respondent has given paper publication in 'samyukta karnataka' a Kannada Daily on 3rd February, 1999 after obtaining the necessary permission from the Competent Authority. In pursuance of the paper publication on 3rd February, 1999 inviting application for the post of 'assistant Master', the petitioner having requisite qualification for the post of 'assistant Master', has submitted her application in the prescribed form by complying with all the requirements. Thereafter, she has been called for interview. There were totally five members who had filed their applications to the post of 'assistant teacher'. Out of five candidates, four candidates have attended the interview. It is the case of the petitioner that, she has secured highest marks among four candidates who attended the interview vide Annexure-C. The certified copies issued by the Secretary of the fifth respondent-Management vide annexures-D and E consisting of four members of the said Selection committee, in which one member is represented on behalf of the government as Educational Officer and three from the Management are produced. The Selection Committee has selected the petitioner for the post of 'assistant teacher' as per the proceedings of the Selection committee vide Annexure-E, dated 4th March, 1999 and the said proceedings had been duly signed by all the four members of the selection Committee including the Government representative. Thereafter, the matter has been placed before the Managing Committee of the fifth respondent and the Committee in turn in its meeting held on 7th March, 1999 has unanimously resolved to accept the proceedings of the Selection Committee. Thereafter, result has been announced in the notice Board, stating that, the petitioner has been selected as 'assistant mistress' vide Annexure-G duly signed by all the Competent Authorities of the fifth respondent. Immediately thereafter, a communication has been sent on 10th March, 1999 bearing No. 182 of 1998-99 to the petitioner directing her to report for duty before 16th March, 1999 accompanied by all the credentials of the requisite educational qualification. After receipt of the communication vide Annexure-H, the petitioner has reported for duty on the forenoon of 11th March, 1999, in the presence of the Headmaster of the said School and the Secretary of the fifth respondent vide Annexure-J. When things stood thus, it emerges from the records available before the Court that, the Deputy director has written to the Secretary of the School on 3rd February, 2000 vide Annexure-K, stating that, on the basis of the surprise visit made by the Educational Officer on 3rd August, 1999 to the School, it is reported by the said Officer that, the petitioner has not secured highest marks and there is some overwriting in the aggregate marks of the petitioner made only to benefit the petitioner. The Deputy Director of public Instructions has further stated that, instead of appointing the candidate who has secured highest marks, a candidate who has secured lesser marks has been appointed much contrary to the Karnataka education Act and Rules and also contrary to the Karnataka Private educational Institutions (Discipline and Control) Act, 1975 (10 of 1975)as it existed then. In pursuance of the said communication from the deputy Director of Public Instructions, the Secretary of the fifth respondent-institution has sent a reply on 17th March, 2000 vide annexure-L requesting to approve the selection made by the Selection committee stating that, the appointment of the petitioner was made is in strict compliance of the mandatory provisions of the Education Act and Rules and the Selection Committee has taken unanimous decision in selecting the petitioner. Thereafter, the Deputy Director of Public instructions has sent a communication dated 22nd June, 2000 vide annexure-M stating that, the appointment of the petitioner cannot be approved since there are excess teachers in the school run by the fifth respondent and there are two excess Science teachers who may have to be transferred to other institutions. Therefore, the question of approving the appointment of the petitioner does not arise and returned the recommendation sent by the Secretary of the fifth respondent. Thereafter, the Director of Public Instructions, Bangalore has sent a communication to the Deputy Director of Public Instructions, Mysore district on 2nd July, 2001 vide Annexure-0, directing him to look into the matter with regard to the approval of appointment of the petitioner and to submit a report. In pursuance of the said communication, on behalf of the Deputy Director of Public Instructions, a reply has been sent on 14th August, 2001 vide Annexure-P to the Director (Higher education), Commissioner's Office, Public Instructions Department, bangalore, producing all necessary documents and requesting him to take suitable action at their level. Be that as it may.

(3.) THE Secretary of the fifth respondent-Institution has given a consolidated detailed representation dated 13th October, 2001 bearing no. 79 of 2000-01 vide Annexure-Q, narrating the facts and circumstances of the case as to how the selection process started and completed, declaration of results and the then Deputy Director of Public instructions has referred and pointed out that there is some error in the procedure followed while selecting the petitioner, etc. At pages 2 and 3 of the said representation, the specific reason behind the disapproval of the appointment of the petitioner has been mentioned and at page 7, the secretary of the fifth respondent has requested the Director to approve the appointment of the petitioner and to take appropriate action against the concerned Deputy Director, as envisaged under the Karnataka education Act and Rules. Thereafter an endorsement has been issued by the Divisional Secretary-cum-Joint Director of Public Instructions, mysore Division, Mysore on 16th January, 2002 vide Annexure-R to the petitioner and the Deputy Director of Public Instructions, Mysore, stating that, there is excess appointment of teachers by the fifth respondent-Management and there is no vacant post as per the report submitted by the then Deputy Director and the same is as per the government Order dated 3rd February, 2000. Thereafter, the fifth respondent sent a reminder letter requesting the concerned Competent authority tc take a lenient view of the matter and consider the request of the petitioner sympathetically for her appointment as Assistant teacher in the school run by the fifth respondent-Institution having regard to the unblemished service rendered by her in the School and also taking into consideration the status of the petitioner and the fact that, her future career is certainly uncertain due to non-approval of her appointment. Thereafter, the petitioner has also given a representation dated 24th June, 2002 to the Secretary, Higher Education, stating that since three years, she is discharging her duties in the said School and that, for no fault of her, till date, her appointment has not been approved and therefore, the concerned authorities may take appropriate decision in accordance with law. In spite of the fifth respondent Management giving detailed explanation, vide Annexure-B and a reminder on 1st February, 2002 vide Annexure-S and also the petitioner giving representation on 24th June, 2002 vide Annexure-T, to the Secretary, Higher Education, the request of approval of the appointment of the petitioner has not been considered nor the authorities have taken any decision in accordance with the mandatory provisions of the Karnataka Education Act and Rules. Hence, in view of the inaction on the part of respondents in not considering the request of the petitioner, the petitioner was compelled to invoke the extraordinary jurisdiction of this Court as envisaged under Articles 226 and 227 of the constitution of India.