D VASANTHA KAMALA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE facts of the case are :-The fourth respondent society is said to be managing two Grant-in-Aid Institutions, namely Smt. Gangamma Hombegowda Girls' high School and Hombegowda Boys' High school. The petitioner had joined the services of the fourth respondent in the year 1970 as an Assistant Teacher at Hombegowda Girls' high School. It is the petitioner's case that in accordance with the rules made by the State government, when more than one High school is managed by a single entity, a common seniority list has to be maintained and the two High Schools are to be treated as one for the purpose of seniority and promotions. The fourth respondent has published a seniority list of teachers working in the schools under its Management. The petitioner, who belongs to the General Merit category, is found at Serial No. 4 in the seniority list. The petitioner would state that in accordance with the amendment to the Karnataka Civil Services (General Recruitment Rules) 1977 (hereinafter referred to as 'the General Recruitment rules' for brevity), insofar as posts in karnataka Civil Services Cadres, for whom the General Recruitment Rules were applicable, the backlog of vacancies, which were lost to the Scheduled Castes and Scheduled tribes in the matter of promotions, was to be computed from 23-4-1978 In the two High schools under the Management of the fourth respondent after 27-4-1978, the following persons have been promoted as Head Masters and Head Mistresses :- <FRM>JUDGEMENT_233_AIRKARR1_2007Html1.htm</FRM> It is the petitioner's case that she was promolted as Head Mistress with effect from 18-2-1994 against a clear vacancy. The Management had submitted the proposal to the offi-cial respondents for approval of the appointment. However, the same was refused on the ground that the backlog was required to be filled up and consequently, the petitioner, who wais working as Head Mistress upto 18-1-1996, was reverted as Assistant Teacher, since the Government did not approve her appointment, and promoted one K. Ramaiah and his promotion was duly approved by the Government on 18-1-1996. The petitioner would further submit that Smt. B. R. Shantha, who was promoted as on 24-5-1993, retired from ser-vixe on 31-5-2001 on reaching the age of superannuation. One Smt. Savitha Maganti had sought and was granted voluntary retirement with effect from 1-7-2001. Consequently, the petitioner is the senior-most Assistant Teacher in the High School under the fourth respondent Management. The governing body of the fourth respondent had, at its meeting held on 2-4-2001, resolved to appoint the petitioner as Head Mistress of Hombegowda Boys' High school with effect from 31-5-2001 in the vacancy which arose on the retirement of Smt. B. R. Shantha and accordingly the appointment was sent for approval to third respondent, and she was duly appointed as on 31-5-2001 as Head Mistress. The petitioner was relieved from Smt. Gangamma Hombegowda girls' High School and she had reported for duty at the Boys' High School. Since the proposal for approval was kept pending, the management had requested the Block Education Officer to permit the petitioner to sign the salary bills, pending such approval. By a memorandum dated 13-7-2001, the Deputy director of Public Instructions, had approved the appointment of the petitioner on temporary in-charge basis, while also permitting her to sign the salary bills. However, the second respondent, by an order dated 30-7-2001, rejected the proposal submitted by the Management for approval of the appointment of the petitioner on the ground that the proposal is aontrary to the roster. It was further clarified by the Block Education Officer that as per the 11979 roster, against the 2nd point, a Scheduled Tribe candidate had to be promoted and since this had not been done, the proposal for her promotion had been rejected, since the department was of the view that no appointment could be approved unless the backlog was cleared. It is in this background that the present petition is filed.

(2.) SHRI P. S. Rajagopal, appearing for the petitioner would submit that in addressing the petitioner's case, it is relevant to peruse; the following Government Orders:-

(3.) IN this background, the counsel Shri P. S. Rajagopal would submit that as could be seen, the matter of reservation in the matter of promotion had come into effect from 27-4-1978. The promotion was made on 4-7-1984. At that time, there was no eligible Scheduled caste candidate, though the first roster point to be filled up by filling a Scheduled Caste candidate. Therefore, in obedience to the Government order dated 27-4-1978. a General merit candidate Smt. Jayalakshmamma was promoted on 4-6-1984 and her promotion approved. Similarly the vacancy at Point No. 3 had to be filled up by a Scheduled Tribe candidate. There was no Scheduled Tribe candidate available. Accordingly, in terms of the above order, the vacancy was filled up by promoting smt. B. R. Shantha, a General Merit candidate, and though the notification dated 1-4-1992 was struck down by the tribunal as noted herein above at the relevant point of time at the instance of the Government, the third vacancy was filled up by promoting Shri k. Ramaiah as on 8-1-1996, who is a Scheduled Caste candidate, in preference to the claim of the petitioner, who was senior to the said Ramaiah, by 15 years. He would therefore point out that there was no backlog vacancy available to a scheduled Caste candidate. The only backlog vacancy, even if it can be contended that such vacancy was available, pertains to a Scheduled Tribe candidate and the only candidate belonging to Scheduled tribe is only Smt. K. Bharathi, who is at Serial No. 35 and she was not even eligible for promotion as on the date of promotion. Even otherwise, under the 1977 roster, the present promotion, which is against roster Point No. 4, would go to an unreserved category and therefore, the promotion of the petitioner is valid and legal. The action of the respondents is hence without basis, in refusing to approve her appointment. In any event, the very notification dated 1-4-1992 was not applicable to the cadre in question and hence, the question of backlog itself would not arise.