GADAGAYYA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD petitioner's learned Advocate and the learned government advocate. The point involved in this petition is a very simple one insofar as the petitioner had been appointed in the year 1988 by the respondent 4-institution which admittedly is a private aided institution. The post of attender in that school was vacant and it is relevant to point out that one a. m. patil had been occupying that post and the government had reimbursed the salary of a. m. patil right from 1979 to 1988. In view of the vacancy, the post was advertised. However since it was reserved for a scheduled tribe candidate, enquiries were made with the local employment exchange but no reserved category candidate was available. The petitioner was interviewed and subsequently came to be appointed and has been working in that post. It is the petitioner's case that despite the fact that his appointment was perfectly legal and despite numerous representations made by the petitioner as also by the management that the respondents have approved of the petitioner's employment with the endorsement that it is without aid. The petitioner consequently contended that though he is a poor attender, that he has been deprived of his salary and that the respondents are duty bound to approve of his post with aid. The submission is that the respondents be directed to sanction the reimbursement of the petitioner's salary from the date of his appointment.

(2.) THE learned government Advocate has submitted that in the first instance it is left to the discretion of the authorities to either approve of a post with aid or without aid and since this was a reserved post wherein an open merit category candidate has been appointed, that the authorities were justified in refusing to sanction the aid. This position cannot be upheld for the reason that the appointment of the petitioner was made only because the reserved category candidate was not available and after having made efforts to secure such a candidate. Petitioner's learned Advocate relies on one more circumstance namely that the government nominee was present when the petitioner was interviewed but more importantly that the government has approved of the petitioner's appointment. In the circumstances of the case, the conditional approval granted was wrong in so far as the post in question was a sanctioned post, it had to be filled up and if the petitioner was otherwise qualified, since the salary of the attender in that post has earlier been approved and sanctioned there was no ground on which the authorities could have refused to reimburse the petitioner's salary.

(3.) THE learned government Advocate has then raised another objection whereby he contends that this is not a writ petition filed by the management on the ground that they are not receiving the reimbursement. He contends that the primary responsibility of paying the petitioner's salary was that of the management and that this court has earlier taken the view that since there is no relationship of master and servant between the petitioner and the government, that this writ petition itself is liable to be dismissed. Reliance is placed on a division bench decision of this court in the case of Shivaji High School v Prabhakar Jotiba Bamane , wherein the court had laid down the proposition that since there is no relationship of master and servant between the employee concerned and the government, as far as private educational institutions go, the liability to pay the salaries is primarily that of the latter namely the management and that consequently they cannot ask the teachers to run after the government to recover their dues. The court did uphold the right of the management to claim the salary amount by way of advance grant or by way of reimbursement from the government. Learned government Advocate submitted that the proposition of law laid down by the division bench would totally debar the petitioner from claiming any relief in this case because the petitioner's remedy if any lies against his own management, if he has not received his salary and as laid down by the division bench it is the management which has the right at the highest to claim reimbursement from the government. He therefore submitted that in view of the ratio of this decision, that the petitioner is disqualified from claiming any relief and that the petition requires to be dismissed. Petitioner's learned Advocate has distinguished the case on facts and he has also pointed out that the principle would not apply to the present case because this was not a new post in that sense and secondly, on the ground that there is no parallel between the two cases, on facts.