FATHIMA UNNISSA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) this is one more instance where the state has sought to put forward a justification for the plea that it is legally permissible to approve the appointment of a teacher and withhold the applicability of the requirement to reimburse the salary of that teacher. The petitioner is working since the year 1989 and as far as the facts of this case are concerned, there is no dispute about the fact that her appointment has been approved. She has stated on oath that because of the refusal on the part of the state to make the grant - in-aid applicable as far as her salary is concerned, that she is not receiving any salary. She had approached this court on an earlier occasion and the court directed the respondent 4 to consider the petitioner's case. As is typical and as is happening in case after case, the. Government officer concerned takes the direction of the court literally and passes an Order that the case has been reconsidered and that the plea has once again been rejected. It is elementary that when the High Court directs the authority to reconsider the matter, what is implicit is that the authority had gone wrong on the earlier occasion and secondly, that the case must be freshly considered in the light of the fact that the court was of the view that such a reconsideration was necessary insofar as the earlier rejection Order did not appear to be correct. It almost borders on contempt in cases where the government officer impertinently passes a mechanical Order once again rejecting the application, thereby giving rise to one more round of litigation. This is precisely what has happened in the present case and the poor clerk is once again before the high court.

(2.) the petitioner's learned Advocate has submitted that the solitary ground given by the respondent 4 is that the government has undoubtedly approved the posts, but that the condition stipulates that the grant-in-aid will not be made available. The respondent 4 further states that certain other employees' salary has been approved of and the grant-in-aid made applicable to them though they belong to the non-teaching staff, but that as far as the present petitioner is concerned, that since no such approval has been accorded by the government, that the salary is still not reimbursable. The learned Advocate submits that the genesis of all this stems from a so-called economy measure drive on the basis of which such orders had been passed. I do not propose to go backwards to examine the validity or otherwise of those measures that were implemented several years earlier. This court has had occasion to deal with a situation identical to that of the present petitioner while disposing of Kemparaju v. State of Karnataka, in a case once again relating to the education department wherein, in para 3 of the judgment, this court had observed as follows : "3. The ground for non-issue of salary grant as emerges from the record is that the government at the relevant time was following what is politely described as "economy measures". Such economy measures prescribe that even those posts that have been approved, were being approved without the sanction of grant. To my mind, there is no legal sanction whatsoever for such partial approval insofar as once the post of appointment is approved of, it necessarily follows that the employee concerned is legally entitled to receive the salary benefits etc., and the obligation in law on the authorities is complete. This aspect of the matter will have some bearing insofar as even though admittedly the government has relaxed the so-called economy measures in the year 1993, the question that would arise is as to from what date the petitioner is entitled to receive his salary and allowances. There could be no ambiguity about the fact that the petitioner will be entitled to these with effect from the date of grant of approval to him which in the present case happens to be 23-12-1992".

(3.) the learned government Advocate has stoutly defended the order. In the first instance, he submits that there are situations in which a government may be required, because of financial constraints, to observe the economy drive. In such a situation, even if an approval to a post is granted, it is open to the government to prescribe that the grant-in-aid will not apply to that post and the learned government Advocate submits that if it is because of financial stringency, in other words the nonavailability of the requisite finances, that a court ought not to interfere with such a decision. His submission is that it is perfectly reasonable and justified to put down such a condition insofar as it is permissible within the framework of the grant-in-aid code to impose conditions. Under these circumstances, it is his contention that the refusal on the part of the department which is on the basis of financial inability must be upheld.