w w w . L a w y e r S e r v i c e s . i n

Dr. B. Chandrashekara v/s State of Karnataka, Represented by its Principal Secretary Education Department (Collegiate Education), Bangalore & Others

Company & Directors' Information:- H H EDUCATION PRIVATE LIMITED [Active] CIN = U80301WB1997PTC083294

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Company & Directors' Information:- P W EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80212TN2009PTC072151

Company & Directors' Information:- A S C EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80904TG2015PTC099629

Company & Directors' Information:- V S INDIA EDUCATION PRIVATE LIMITED [Active] CIN = U80904UP2016PTC084320

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    W.P. No. 8782 of 2020 (S-KSAT)

    Decided On, 21 September 2020

    At, High Court of Karnataka


    For the Petitioner: Prof. Ravi Varma Kumar, Sr. Counsel, G. Sharada Bai, Advocate. For the Respondents: R3, Shwetha Anand, Advocate, R1 & R2, T.L. Kiran Kumar, AGA.

Judgment Text

(Prayer: This Writ Petition is filed Under Section 148-A of the Code of Civil Procedure, 1908 praying to quash the order dated:23.06.2020 passed by the Karnataka State Administrative Tribunal Bangalore, in Application No. 1783/2020 (Annx-F))Aravind Kumar, J.1. In this writ petition, order dated 23.06.2020 passed by the Karnataka State Administrative Tribunal, Bengaluru (for short 'Tribunal') in Application No.1783/2020 (Annexure-F) is assailed by the petitioner and has prayed for quashing of the same.2. Third respondent herein filed an Application No.1783/2020 before the Tribunal for quashing of the order bearing No.Ka.Shi.E/85/Prabhara/2017-18/Va. & Ni. dated 29.05.2020 (Annexure-A1) whereunder writ petitioner who was working as Principal on OOD in Government First Grade College, Vijayanagar, came to be posted as in-charge Principal, Government RC-College for Commerce and Management (for short RC-College) and he also sought for a direction to respondent Nos.1 and 2 to place him (applicant) as in-charge Principal of Government R.C. College of Commerce and Management (for short 'RC-College').BRIEF BACKGROUND:3. In the year 2018, petitioner came to be posted as in-charge Principal of RC-College which was challenged by one Dr.Syed Yousuff before the Tribunal in Application No.6160/2018, which order of posting came to be set aside by the Tribunal on 04.02.2019 with a direction to appoint said Dr.Syed Yousuff as Principal of RC-College. On his attaining the age of superannuation, Dr.Syed Yousuff retired from service on 30.05.2020 and said post having become vacant, petitioner came to be repatriated from Government First Grade College, Vijayanagar, where he was working and was appointed as in-charge Principal of RC-College by order dated 29.05.2020 and he took charge on 30.05.2020. It is this order dated 29.05.2020 (Annexure-A1) passed by second respondent which came to be challenged by third respondent herein before the Tribunal. On service of notice, respondents appeared and respondents-1 and 2 filed their counters and after considering rival contentions raised by the respective learned Advocates, tribunal has allowed the application on the ground that:(i) Official respondents have not placed on record any material on record to contend that in-charge Principal in RC-College should be a person holding PhD degree;(ii) No Cadre and Recruitment Rules were framed with reference to filling of said post;(iii) No counselling was held while posting the writ petitioner as in-charge Principal of RC-College earlier;(iv) Without notifying the post for counselling, writ petitioner had been posted and it is contrary to all the norms.Being aggrieved by aforesaid order passed by the tribunal, writ petitioner who was posted as in-charge of RC-College, is before this Court questioning the same.4. We have heard the arguments of Sri.Raviverma Kumar, learned senior counsel appearing for petitioner, Sri.T.L.Kiran Kumar, learned Additional Government Advocate appearing for respondents- 1 and 2 and Smt.Shwetha Anand, learned Advocate appearing for respondent-3. Perused the case papers.5. Government RC-College is established and administered by the Government of Karnataka and recognized by the Universities of Bengaluru and Tumkur. It has a Research Centre of Ph.D programme in Commerce. There are about 412 Government First Grade Colleges in the State of Karnataka and post of the Principal of these colleges are filled by the Directorate of Recruitment. Surprisingly, no recruitment to the post of Principal of these colleges have taken place since last 10 years. This is abysmally sorry state of affairs in the Education Department (Collegiate Education) which would affect the teaching system, management and administration as well.6. Large number of posts of Principal have remained vacant in the Government First Grade Colleges and for the past 10 years, in these colleges there are no regular Principals, are being run and administered by in- charge Principals. Hence, arrangements being made on adhoc basis, has created heartburn amongst faculty members and inaction on the part of the State in framing Rules has resulted in multiplicity of litigation. As and when orders are made placing the faculty members as in-charge Principals, litigation have cropped-up. The present litigation is an offshoot of one such action by the State.7. In the year 2014, counselling was held under Rule 68 of the Karnataka Civil Services Rules (for short 'KCSR Rules') and list of persons who are eligible to participate in the counselling was notified in which, name of the petitioner appeared at Sl.No.160 and name of third respondent figured at Sl.No.112. In the said counselling, petitioner was posted to work as in-charge Principal, Government First Grade College, Hosanagar and accordingly, he worked with effect from 11.07.2014 and thereafter he has been transferred from place to place as in-charge Principal and has worked in colleges at Kadugodi, Devanahalli, Government RC-College of Commerce and Management, Government First Grade College, Vijayanagar, Bangalore, and at the time impugned order dated 29.05.2020 (Annexure-A1) came to be passed by the Government while he was working as in-charge Principal in RC-College.8. As noticed herein above, Dr.Syed Yousuff challenged the posting of the petitioner at RC-College by filing Application No.6160/2018, which was allowed on 04.02.2019 and thereafter petitioner came to be repatriated to RC-College as in-charge Principal with effect from 29.05.2020. It is this order dated 29.05.2020 under which petitioner came to be appointed as in-charge Principal of RC-College, which was challenged before the tribunal by third respondent herein, which has been set aside by the tribunal and it is subject matter of this writ petition.9. It is the contention of Sri.Raviverma Kumar, learned Senior counsel appearing on behalf of the petitioner that petitioner is highly qualified and a holder of a doctorate namely, Ph.D in Commerce having secured 55% in the Masters Degree, 15 years of teaching, research and administration in University/ College as Associate Professor and Supervisor and keeping these aspects in mind, second respondent had appointed the petitioner as in-charge Principal of RC-College. He would also contend that UGC Regulations stipulates that Ph.D is essential requirement for filling up of post of the Principal and even the draft Rules of 2020 prepared by the Government of Karnataka, qualification prescribed for appointment to the post of Principal is that a candidate should possess: (a) Ph.D qualification from UGC recognized University; (b) is a Professor or Associated Professor with total experience of full time faculty for 15 years; (c) minimum 10 research publication in peer-reviewed or UGC listed journals (d) should have minimum of 110 Research Score, which qualification undisputedly petitioner possessed and same is lacking insofar as third respondent is concerned and as such he cannot be made in-charge Principal, which aspects have not been dealt upon by the Tribunal. He would further elaborate his submission by drawing our attention to Rule 68 of KCSR Rules to contend that Note (1) below the said Rule has been ignored by the Tribunal. He would also contend that respondent-3 lacks basic qualification to be appointed as Principal in accordance with UGC guidelines and petitioner holding Ph.D degree alone has been rightly appointed by the second respondent, which ought not to have been set aside by the Tribunal.10. He would also submit that in the year 2014, third respondent having declined to accept the post of in- charge, which is accepted by the State and not questioned by third respondent, he cannot now question the repatriation of the petitioner and posting him as in- charge Principal. He would also draw the attention of the Court to the order of Tribunal to contend that Tribunal has committed a factual error in holding that petitioner has participated in the counselling in the year 2014 - Annexure-R-1 produced by the State Government along with its reply statement would clearly establish that name of the petitioner is found at Sl.No.160. Hence, he contends that there is total non-application of mind by the Tribunal. He would also contend that Tribunal erred in arriving at a conclusion that post of Principal was not notified for counseling, inasmuch as, appointment of the petitioner as in-charge Principal under the impugned order dated 29.05.2020 (Annexure-A1) is the order of repatriation to the parent college. He would also contend that RC-College being research oriented and third respondent not possessing requisite qualification namely, he does not possess Ph.D degree, he cannot be appointed as in-charge Principal of RC-College. Hence, he prays for setting aside the order passed by Tribunal by allowing the writ petition.11. Learned Government Advocate would support the arguments advanced by the learned Senior Counsel appearing for the petitioner and would reiterate the grounds urged in the reply statement filed before the Tribunal. He would further contend that draft notification published by the State Government on 10.02.2020 prescribes essential requirement of Ph.D for the post of Principal and by relying upon the judgment rendered in W.P.No.100351/2014 and connected matters he would contend that it has been held in the said writ petition that the post of Principal is to be filled by a candidate possessing Ph.D degree. Hence, he prays for allowing the writ petition by setting aside the order passed by the Tribunal.12. Per contra, Smt.Shwetha Anand, learned Advocate appearing for third respondent would support the order passed by the Tribunal and contends that writ petition itself is not maintainable in view of the fact that second respondent has complied with the directions issued by the Tribunal by passing an order dated 10.07.2020 (Annexure-R9) pursuant to which, third respondent has reported to duty on 30.07.2020 and has been discharging his duties as in-charge Principal of RC- College. She would also contend that third respondent herein being senior to the petitioner as per seniority list of Associated Professors of Collegiate Education (Annexure-A3) prepared as on 30.06.2017 which would indicate that third respondent is at Sl.No.3001 and petitioner is at Sl.No.3057 and the date of entry to the present cadre by third respondent is 20.02.1991, whereas, petitioner has entered the cadre on 22.08.1992 and thereby petitioner is junior to third respondent. She would submit that it is only senior most Professor who can be posted as Principal of RC-College and draws the attention of the Court to the Circular dated 03.07.2020 (Annexure-R8) which mandates that senior most Associate Professor of the same college should be handed over charge, in the event of either transfer or retirement of the Principal of the college. She contends that third respondent has already reported to duty at RC-College and has been performing his functions and as such, disturbing him at this length of time would be inappropriate. She would further contend that Note (1) of Rule 68 of KCSR Rules would be applicable to direct recruitment and not to promotional posts and as such, she supports the order of the Tribunal and prays for dismissal of the writ petition.13. According to the Cadre and Recruitment Rules - the posts of the Principal in Government Degree College 100% is by direct recruitment. However, as observed by us hereinabove for the past 10 years, no recruitment to the post of Principal has taken place. However, to keep the kettle boiling in-charge arrangements are being made by appointing in-charge Principals. During the year 2014, the Commissioner, Department of Collegiate Education by communication dated 21.02.2014 and 04.02.2014 sought for suitable steps being taken for appointing Principals at 194 Government First Grade Colleges, which were then vacant by appointing Associate/Assistant Principals who are seniors in their respective colleges till direct recruitment is made. On 04.03.2014 170 colleges were notified where the posts of Principals were vacant apart from notifying 27 colleges where the posts of Principals were yet to be sanctioned. On 07.05.2014, 20.05.2014 and 31.05.2014 Office Memorandums came to be issued by Director of Collegiate Education notifying the vacant posts to fill up the posts of in-charge Principals. Counselling came to be held on 04.06.2014, in which the third respondent herein participated and expressed his unwillingness to work as Principal as is evident from the counselling proceedings, which was appended as Annexure-R1 to the reply statement filed in Application No.1783/2020 before the tribunal. The said counselling was conducted on the basis of the seniority list, in which list the name of third respondent herein figured at Sl.No.112, while that of the petitioner figured at Sl.No.160. In the said counselling, petitioner herein accepted the post of Principal (in-charge) at Government First Grade College, Hungund and accordingly, he worked as in-charge Principal on OOD with effect from 11.07.2014 and thereafter was transferred on deputation as in-charge Principal and has been working in the colleges at Kadugodi, Devanahalli, RC College, Government First Grade College-Vijayanagar, Bangalore and thereafter to RC-College, Bengaluru.14. It would be appropriate to note at this juncture that petitioner was posted as in-charge Principal of RC-College, Bengaluru, which was challenged by Dr.Syed Yousuff as already noticed hereinabove in Application No.6160/2018, which came to be allowed on the ground that third respondent therein (writ petitioner herein) had not fulfilled the criteria prescribed in the Special Guidelines dated 22.02.2014 issued by the second respondent namely, third respondent (writ petitioner herein) being junior to the applicant. In other words, the application came to be allowed on the ground that the Special Guidelines dated 22.02.2014 (Annexure-A2) had not been followed. It is necessary to note at this juncture that in the said case both the applicant and the third respondent, therein i.e., Dr.Syed Yousuff and Dr.B.Chandrashekar were both possessing Ph.D Degree and in the seniority list Dr.Syed Yousuff was senior to the writ petitioner herein. The Guidelines in the Circular/OM dated 22.02.2014 (Annexure-A2), which was heavily relied upon by the applicant before the Tribunal would clearly indicate that the temporary arrangement of appointing the in-charge Principals was on account of there being no direct recruitment. It is necessary and imminent to extract the said OM dated 22.02.2014, as it would have a direct bearing for adjudication of the present dispute. It reads:“KANNADA”15. A plain reading of above OM would indicate that the posts of the Principals in Government First Grade Colleges are to be filled through direct recruitment as per prevailing Cadre and Recruitment Rules and UGC Guidelines. It is no doubt true that counselling should be called based on provisional seniority list. Clause (iii) of the said Circular would indicate that Principals who are already in the list and also those who are already rendering services shall be prioritized on seniority basis and shall continue to serve in their current posts.16. In the instant case, as noticed hereinabove, during the year 2018 for the appointment of in-charge Principals to the First Grade Government Colleges from amongst the seniority list, both petitioner and third respondent who were at Sl.Nos.160 and 112 respectively participated in the counselling and the in-charge Principal post offered to the third respondent herein came to be declined and petitioner herein accepted his posting as in-charge Principal of Government First Grade College-Vijayanagar, Bengaluru. Whereas the third respondent herein continued his services in RC-College, Bengaluru and on the retirement of Dr.Syed Yousuff from RC-College, Bengaluru, second respondent by order dated 29.05.2020 (Annexure-A1) directed the petitioner to take charge of the Principal post at RC-College, Bengaluru. Third respondent herein was posted as Principal, First Grade College, Vijayanagar, Bengaluru vide order dated 12.06.2020 (Annexure-C) passed by second respondent.17. Karnataka Education Department Services (Collegiate Education Department) (Cadre and Recruitment) Rules, 2008, has come into force with effect from 29.09.2009. Said Rules provides for appointment to the post of Principal by direct recruitment. It does not provide for promotion. The communication dated 22.02.2014 (Annexure-A2) would also indicate that posts of Principals are to be filled through direct recruitment as per Cadre and Recruitment Rules and UGC Guidelines. Both the petitioner and the third respondent have been extended the benefit of revised UGC pay scale. The UGC Guideline prescribes the qualification for the post of Principal as:(i) A Masters Degree with atleast 55% of the marks or relevant grade regarded as equivalent to 55% of marks wherever grading system is followed by a recognized University;(ii) Ph.D. qualification in concerned/allied/relevant discipline with evidence of published work and research guidance.(iii) Associate Professor/Professor with a total experience of 15 years of teaching/research/administration in Universities/Colleges and other institutions of higher education.(iv) A minimum score as stipulated in the Academic Performance indicator (API) based on Performance Based Appraisal System (PBAS) for Professors as developed by UGC in its Regulations.Thus, UGC Guidelines clearly prescribe that posts of Principal is to be filled up by a person possessing Ph.D, it cannot be gainsaid by the third respondent that criteria of seniority alone is to be taken into consideration by ignoring the requisite qualification. In fact, appropriate Government has gazetted a notification on 11.02.2020, which has been filed by the learned Government Advocate in the instant case, whereunder separate Rules known and called as "Karnataka Education Department Services (Collegiate Education Department) (Recruitment of Posts of Prin

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cipals (UG)) (Special) Rules, 2020", is sought to be introduced, for which objections have been called for. Even under the said draft notification the qualification which has been prescribed for appointment as Principal (UG) is that candidate should possess Ph.D qualification from UGC recognized University amongst others. It is trite law that for appointment as in-charge the seniority criteria would not be relevant and even otherwise consideration of seniority would arise amongst persons who are in same cadre. In the instant case, petitioner does possess the criteria prescribed by the UGC Guidelines and the State having extended the UGC pay scale to the petitioner and third respondent, it cannot be gainsaid by third respondent that UGC Guidelines are to be ignored or given a goby.18. That apart, it requires to be noticed that RC- College, Bengaluru, is a recognized institute for conducting research in the field of Commerce and on comparative scale of experience, petitioner has been working as an in-charge Principal from the year 2014 as against the third respondent having not administered any college as Principal. In fact, in the year 2014 the third respondent had refused to accept the same. As such we are of the considered view that the order of Tribunal is not sustainable and is liable to be set aside.For the reasons aforestated, we proceed to pass the following:ORDER(i) Writ petition is allowed and order dated 26.03.2020 passed by The Karnataka State Administrative Tribunal in Application No.1783/2020 (Annexure-F) is hereby set aside.(ii) Application No.1783/2020 (Annexure-A) filed by the third respondent is hereby dismissed.(iii) Pursuant to order passed by tribunal in Application No.1783/2020 (Annexure-F) third respondent has taken charge as in-charge Principal of RC-College vide order dated 03.07.2020 (Annexure-R-9) passed by second respondent. Said authority shall take immediate steps to place the petitioner as Principal of RC-College, Bangalore, forthwith.(iv) Costs made easy.