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Ilyas Ahmed Patwegar v/s The State of Karnataka, Represented by its Principal Secretary & Others

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Writ Petition No. 4900 of 2008 (S-RES)

    Decided On, 05 May 2020

    At, High Court of Karnataka Circuit Bench At Dharwad


    For the Petitioner: Ravi Hegde, Advocate.For the Respondents: R1-R4, V.C. Kalasoormath, R8, Srinand Pacchapure, R9, Ahamed Ali Rehamanshah, R10, S.S. Patil, Prashant S. Hosamani, V.B. Bajantri, Advocates.

Judgment Text

(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to issue writ of mandamus directing the respondents to approve the appointment of the petitioner and release the full salary attached to the post and further direct the respondents to treat the appointment of the petitioner as regular appointment and quash the notification dated 26.8.2007 published in Samyuktha Karnataka Kannada Daily Newspaper issued by R7 Management vide Anx-G; and etc.)

1. The petitioner is before this Court seeking for a writ of mandamus to approve his appointment and release full salary; for a writ of certiorari quashing the notification dated 26.08.2007 published in Samyukta Karnataka inviting applications; for a direction to the respondents to pay full salary attached to the post of the petitioner; for writ of certiorari to quash the order of the 2nd respondent dated 6.01.2010 granting approval to the appointment of respondent No.10; for a mandamus directing the respondent-Management to expedite the proceedings and to appoint the petitioner as fulltime grant-in-aid Lecturer in Urdu language and to seek the approval of the Government for the same.

2. Petitioner claims to be appointed as a Lecturer in Urdu in the 8th respondent Institution viz., Nehru Arts, Science and Commerce Degree College, Ghantikeri, on fulltime basis and has been working therein for nearly ten years. The petitioner claims to have passed M.A. in Urdu and has worked as Guest Lecturer for 3 years in P.G.Department of Urdu and Persian, Karnataka University, Dharward; 6 years as an Academic Counsellor in MANUU; and 3 years as a Lecturer in Political Science in Anjuman Women's College, Hubli. He claims that he has been working from the year 1998 with 8th respondent, from the year 1998 till 2002 worked as Part-time Lecturer and from 2002 on fulltime basis.

3. The petitioner claims that there were two permanent posts of Lecturers which were advertised by the 8th respondent-Management on 7.06.2002, for which he was selected in the meeting of the Committee dated 23.06.2002. He was issued with an appointment order on 1.07.2002. Petitioner contends that 8th respondent is a linguistic and religious minority institution and is government-aided. He states that even though his appointment was made in the year 2002, full salary was not paid to him and only Rs.3,000/- p.m. was being paid. Subsequently, 8th respondent issued one more notification on 26.08.2007 for one post, which, according to the petitioner, is unconstitutional and illegal and hence, he is seeking for quashing of the said notification.

4. The petitioner, however, submits that in pursuance of the Notification dated 26.08.2007, petitioner applied for the post, his interview was conducted, marks awarded, thereafter 5th respondent had intimated 2nd respondent vide its letter dated 5.12.2007 that since the experts in Urdu subject had not given a clear opinion regarding the candidates, it had been decided to appoint a Highly Knowledgeable Subject Experts and seek their opinion in regard thereof. Petitioner contends that by manipulating the records and proceedings, 5th respondent, behind the back of the petitioner, issued an order of appointment to Smt.Reshma Sultana S.Husaini without seeking the opinion of Highly Knowledgeable Subject Experts as stated in the letter dated 5.12.2007 by the very same Committee who had earlier opined that further opinion was required and had issued a letter of appointment to the said Reshma Sultana. The Committee not having approved her appointment, she had approached this Court by filing W.P.No.63254/2009. However, the same was dismissed by this Court. Subsequently, on 6.01.2010, 2nd respondent granted approval for the appointment of Reshma Sultana.

5. The petitioner contends that the entire process has been clandestine, the Authorities concerned have sought to help Reshma Sultana, the appointment is improper. It is on this ground, he has sought for the above prayers.

6. Smt.Reshma Sultana filed an application for being impleaded in the present proceedings. The same came to be allowed. She has been arraigned as 10th respondent. 10th respondent filed her objections to the petition stating that her appointment is proper. Such an appointment is on the basis of the marks secured by her. That this Court would not have jurisdiction to go into the matter of appointment of the lecturers on account of 8th respondent being a Minority Institution and therefore, sought for dismissal of the writ petition.

7. During the pendency of the above petition, this Court had appointed the Commissioner of Collegiate Education to inquire into the matter and to submit a detailed report regarding the appointment of Lecturers in Urdu language in 8th respondent- Institution on 3.04.2018. In furtherance of the same, a report came to be filed on 16.08.2018. The report castigates 8th respondent and its officers and categorically states that there is a violation of the applicable procedure in the appointment of 10th respondent. The report in brief observed as under:

i) that the Management claimed that a resolution had been passed on 25.11.2007 appointing 10th respondent. It is opined that if the appointment was approved on 25.11.2007, there was no need for the Board to send a letter dated 5.12.2007 and or for the Joint Director to send a letter dated 26.12.2007 whereunder it was indicated that the selection for the post of Urdu Lecturer was postponed;

ii) The resolution dated 13.01.2009 is also stated to be suspect since concerned resolution is written after the words "no other subject came up for discussion and the meeting was concluded". Therefore, it is alleged that the above extracted line should have been the last line, there could not be a resolution thereafter.

iii) Once the Committee had stated that they would seek for the opinion from an expert, the Committee could not have appointed 10th respondent without obtaining such an opinion.

iv) The Committee which appointed 10th respondent was the same Committee who had stated that they would seek for an expert opinion.

8. On the basis of the above, it has been concluded that there were several discrepancies which had occurred in the selection process and that there is a major flaw in the selection process of 10th respondent.

9. Sri.Ravi Hegde, learned counsel appearing for the petitioner would place extreme reliance on the report to contend that in view of the contents of the report and enquiry made, it is categorically established that 10th respondent's appointment is bad in law. Therefore, he submits that such an appointment has to be set-aside and the prayers sought for by him have to be granted.

10. Sri.V.B.Bajantri, learned counsel appearing for 10th respondent would contend that the entire applicable procedure has been followed. He further contends that there is a bar in terms of Section 130 of the Karnataka Education Act, 1983 ('Act' for short) for this Court to take up the matter since there is a statutory appeal which has been provided therein. He states that in terms of Section 130 of the Act, the petitioner has an alternative and efficacious remedy, the present writ petition is not maintainable. In this regard he places reliance on the decision of this Court in W.P.No.45627/2012 (EDN-Res) in the case of R.K.S.Educational Society -v- The State of Karnataka and others. He also submits that when a candidate who appeared for the selection, participated in the same expecting that he would be appointed, he could not thereafter turn around and question the method of selection and its outcome by relying on a decision in the case of Ramesh Chandra Shah and Others -v- Anil Joshi and Others reported in (2013) 11 SCC 309.

11. Sri.K.L.Patil, learned counsel appearing for the Institution would submit that the entire process and procedure has been followed. There is one more post which is now available, the Institution is willing to nominate the petitioner for such post of Urdu Lecturer, on that basis he submits that the writ petition could be disposed of.

12. Heard, Sri.Ravi Hedge, learned counsel for the petitioner, Sri. V.S. Kalasomoormath , learned counsel for the Respondents No.1 to 4, Sri. Srinand Pacchapure, learned counsel for Respondent No. 8, Sri. Ahamed Ali Rahimanshah, learned counsel for Respondent No. 9 and Sri. V.B. Bajantri, learned counsel for Respondent No. 10.

13. Before considering the merits of the matter, let me first advert to the aspect of alternative and efficacious remedy. Though Sri.V.B.Bajantri, learned counsel has relied on the Judgment in W.P.No.45627/2012 and contended that Section 130 of the Act provides for alternative and efficacious remedy, I am of the opinion that Section 130 does not bar the jurisdiction of this Court. It is only an alternative appellate remedy which is provided. Normally at the initial stage of the writ petition, the petitioner could have been relegated to the said appellate remedy, but since the writ petition is pending for the last 12 years having been filed in the year 2008, there is no purpose which would be served by relegating the petitioner to appellate remedy on such technical ground. Hence, this writ petition is taken up for disposal dehors Section 130 of the Act.

14. The petitioner has sought for a mandamus directing the respondents to approve his appointment and release full salary attached to the post and to direct the respondents to consider the appointment of the petitioner as a regular appointment. Admittedly, the proposal which had been sent by the 8th respondent on 23.06.2002 is not approved and in fact, was sent back stating that due to financial issues, two posts could not be sanctioned and only one Lecturer was to be appointed. It is in pursuance of this rejection by the Government that another notification on 26.08.2007 was issued inviting for applications for the post of one Urdu Lecturer, whereas the earlier advertisement on 7.06.2002 was for two posts of Urdu Lecturers. Thus, the prayer of the petitioner for a direction to the respondents to approve his appointment made in terms of the unapproved proposal and make payment of full salary cannot be granted by this Court.

15. The petitioner has sought for a writ of certiorari to quash the notification dated 26.08.2007 published in Samyukta Karnataka inviting applications for the post of one Urdu Lecturer. In this regard, the decision relied upon by Sri.V.B.Bajantri in Ramesh Chandra Shah's case (supra) would come in the way of the petitioner agitating such a claim. Petitioner had voluntarily participated in the selection process, submitted his documents, participated in the interview process and only upon his non- selection has challenged the notification. Therefore, in view of the dicta laid down in Ramesh Chandra Shah's case (supra), this relief cannot be granted.

16. The petitioner has sought for payment of full salary attached to the post of the petitioner with effect from his first appointment on 1.07.2002. This prayer cannot be granted for the same reasons as the refusal for the mandamus indicated above.

17. The petitioner has sought for quashing the order dated 6.01.2010 issued by the 2nd respondent appointing 10th respondent. From the Enquiry report submitted by the Commissioner of Collegiate Education castigates the Management and officers of the respondent-Institution. All the discrepancies pointed out by the said Commissioner are borne out by the records available before this Court and this Court also concurs with the said observation. Most important being that in the resolution dated 13.01.2009, the approval for the appointment of 10th respondent has been inserted after the closing of the meeting and the said wordings are sought to be fitted in within the available space thereby making the writing smaller, as also reaching to the very last line. This exfacie appears to be an insertion made and is contrary to the process and procedure followed by the respondent-Institution for recordal of resolutions in earlier meetings. Thus, it is c

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lear that there is concerted action on the part of 8th respondent-Institution in creating documents for the appointment of 10th respondent. 18. In view thereof, appointment not being free from lapses, the order dated 6.01.2010 of the 2nd respondent appointing 10th respondent is hereby quashed. However, since 10th respondent has received salaries for the last ten years, it is directed that there shall be no recoveries initiated by 8th respondent as against 10th respondent, but, however the Commissioner of Collegiate Education i.e. 2nd respondent shall file necessary proceedings before the Hon'ble Lokayukta requesting for enquiry into the matter to identify the persons liable and to fix the responsibility so as to enable the recovery of the additional amounts paid out of the grant-in-aid funds to 10th respondent by the 8th respondent, from those errant officials. 19. The Institution-8th respondent is directed to forward necessary documents and proposals to the concerned authorities for the purpose of appointing the petitioner as a fulltime Lecturer in Urdu subject in the 8th respondent-Institution within a period of three months from the date of receipt of this order. The writ petition is accordingly disposed of. In view of disposal of the petition, pending IAs do not survive for consideration and are accordingly disposed of.