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The Education Society, Rabkavi, Represented By Chairman, Balachandra v/s The State of Karnataka, By Principal Secretary, Primary & Secondary Education Department & Others

    W.P. No. 62671 of 2010 (S-RES) c/w W.P. No. 65368 of 2011 (S-RES)

    Decided On, 07 March 2018

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

    For the Appearing Parties: Basavaraj Godachi, A.R. Rodrigues, AGA, S.C. Bhuti, V.P. Kulkarni, Advocates.



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 & 227 of Constitution of India praying to issue the Writ of Certiorari /Set aside the order Dated 02.01.2010, passed by the Hon'ble Education Appellate Tribunal, Bagalkot in E.A .T.N O.3/2007 Annexure-M and Etc.

This Writ Petition is filed under Articles 226 & 227 of Constitution of India praying to issue a writ, direction or order in the nature of writ of certiorari quashing the order Dated 02.01.2010 passed by the education Appellate Tribunal, in Eata.No.3/ 2007 Copy of which is produced as Annexure-A and etc.)

1. Heard the learned counsel for the petitioners, and the respondents in both the writ petitions and perused the records.

2. The above said two writ petitions are filed challenging the same order passed by the Educational Appellate Tribunal & District Judge, Bagalkot in EAT Appeal No.3/2007.

3. W.P.No.62671/2010 is filed by the Management, wherein W.P.No.65368/2011 is filed by the Government challenging the said order.

4. The undisputed factual aspects which are available on record and also as carved out by the Educational Appellate Tribunal are that, the Management has appointed Sri Shiva

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nanda Mahabalashetti as Assistant Master in its school on compassionate ground vide appointment order dated 05.09.1994, which is produced before this court as per Annexure-A. Thereafter the Management on 12.01.1995, sent a proposal for approval of the appointment of Sri Shivananda Mahabalashetti which was sent back with certain objections, and with instructions to the Management for compliance of the same. Taking advantage of the same, as there was some observation by the Commissioner with regard to the appointment of Sri Shivananda Mahabalashetti to the service, the Management has relieved Sri Shivananda Mahabalashetti from his services on 28.02.1995. Even at that juncture, Management has not choosen to conduct any enquiry as such. Again vide order dated 20.04.1995 the D.D.P.I. directed the Management to continue the service of Sri Shivananda Mahabalashetti as Assistant Master by adjusting the Hindi period in the school time table. In the mean time, Sri Shivananda Mahabalashetty has challenged the order of termination dated 28.02.1995 in W.P. No.11764/1995. The said writ petition was disposed of with a direction to the Management to send the proposal once again for approval of the appointment of Sri Shivananda Mahabalashetty. As the Management did not comply the directions of the Court, contempt proceedings were initiated in C.C.C. No.182/1996 against the Management. An affidavit was filed by the Management in the said contempt proceedings that the Management would send the proposal again for approval of the appointment of said Sri Shivananda Mahabalashetty. The Court also directed the Management to release the salary.

5. In this background, a fresh proposal was sent, the Department has approved the appointment of Sri Shivananda Mahabalashetti vide order dated 03.09.1996 subject to certain conditions. In the mean time, Sri Shivananda Mahabalashetti has also filed another writ petition in W.P. No.21034/1997 seeking direction to the Management and Government to pay his salary from 01.08.1996 and the said writ petition was also allowed. Sri Shivananda Mahabalashetti also filed another writ petition in W.P. No.25712/2002 before this Court and this Court has directed the Management and others to consider his case with regard to the approval of the post within a period of three months. Thereafter it appears that the Management has sent for approval of the post which was placed for consideration of the Government and in turn the Management hitherto supporting Sri Shivananda Mahabalashetti took 'U' turn and filed objections before the Government. However, Government passed an order on 20.05.2002 raising the issue regarding date of birth that, the date of birth of Sri Shivananda Mahabalashetti was found to be fake and two dates of birth have been given by him. In this context, the D.D.P.I. submitted a report to the Government on 13.02.2007 and on the basis of the same, the Government has not approved the post of the petitioner and by virtue of the report of the D.D.P.I. dated 13.02.2007 holding that Sri Shivananda Mahabalashetti has submitted some fake documents and as well as the two dates of birth have been given, hence some foul play has been played by him. It is specifically on the ground that the Transfer Certificate produced by Sri Shivananda Mahabalashetti issued by the same Principal, Prabhuling Composite Pre-University College, which shows that his date of birth was 28.11.1967, but another Transfer Certificate produced by him issued by the same Principal, Prabhuling Composite Pre-University College shows the date of birth as 08.05.1971. On the basis of such enquiry conducted by D.D.P.I. and the orders passed on the report submitted on 13.02.2007, the Management has passed an order on 18.07.2007 dismissing Sri Shivananda Mahabalashetti from his services and relieved him from his duties and the said order has been challenged before the Educational Appellate Tribunal.

6. The Educational Appellate Tribunal after securing the presence of the parties to the proceedings and after due contest has held that, the order of dismissal passed by the Management is illegal and ordered for reinstatement of Sri Shivananda Mahabalashetti with full backwages and consequential benefits. The said order is called in question before this Court.

7. The learned A.G.A. is mainly on the point that the Educational Appellate Tribunal has no jurisdiction to entertain any appeal. The learned counsel for Management strenuously contends before this Court that the order dated 18.07.2007 is not actually an order falls under Section 94 of the Karnataka Education Act, 1983, (for short, 'the Act') as the said order does not amount to an order of dismissal, removal or reduction in rank passed against Sri Shivananda Mahabalashetti. Except that no other submissions have been made with regard to the merits of the case. Even otherwise, no merit arises for consideration because the Management itself has not come up with the plea that before issuing the order dated 18.07.2007 they have conducted any enquiry as contemplated under the Karnataka Education Act and Rules thereunder. Therefore, the learned counsel confines his arguments so far as the jurisdiction of Educational Appellate Tribunal is concerned.

8. The learned A.G.A. in support of the grounds urged in the memorandum of petition contends that the Government has refused to approve the appointment of Sri Shivananda Mahabalashetti as Hindi Teacher on various grounds. Therefore, the Government is not liable to pay any salary in this regard. Even considering the order of the Education Appellate Tribunal there is no specific direction to the Government either to approve Sri Shivananda Mahabalashetti as Assistant Teacher and to pay the salary. It has simply stated that the order passed against Sri.Shivananda Mahabalashetti dated 18.07.2007 is set aside.

9. Be that as it may, on the above said grounds, the Court has to ascertain whether the Educational Appellate Tribunal has jurisdiction to pass the impugned order or not. Straight away I will refer the impugned order itself which is produced before this Court as per Annexure-L. The said order discloses that, "as the Government has not approved the name of Sri Shivananda Mahabalashetti for the post of Hindi Teacher in Girls High School of Rabakavi under the Management and in view of the report of D.D.P.I., he has been relieved from services from 18.07.2007".

10. On plain reading of this document, though in the nomenclature it appears that as if it is a relieve order passed by the Management, the ground on which this particular order has been issued can only be decided if Annexure-R3 is seen. Annexure-R3 is produced by Sri Shivananda Mahabalashetti wherein Annexure-R3 is the dismissal order though it is stated as a notice in No.SPM:Seveindavaja:11:2007-08 dated 18.07.2007 passed by the Management. Quoting all the previous transactions that have taken place right from the date of proposal sent by the Management to the Government for approval of the name of Sri Shivananda Mahabalashetti to the post of Hindi Teacher and also the refusal of the approval by the Government and also the report of the D.D.P.I. dated 10.02.2007 ultimately at last paragraph the Management has taken a decision to remove Sri Shivananda Mahabalashetti and to relieve him from his services.

11. In this background, it is specifically stated that Sri Shivananda Mahabalashetti has been dismissed from his service and thereafter relieved from the institution.

12. On careful perusal of the documents, it is clear that it is the dismissal order passed by the Management which is called in question before Educational Appellate Tribunal. The said order, in a straight jacket manner, falls within the four corners of Section 94 of the Act which says that "if any teacher or other employee of a private education institution who is dismissed, removed or reduced in rank may within three months from the date of communication of the order prefer an appeal before the Tribunal".

13. Therefore, when the order impugned falls under the definition of dismissal, the Educational Appellate Tribunal gets jurisdiction to deal with such an appeal as rightly done by the trial Court in this particular case.

14. Though arguments have not been addressed with regard to the merits of the case, the facts remain that the Government has not approved Sri Shivananda Mahabalashetti for the post of Hindi teacher. Nevertheless the Management has appointed him right from 1994 and sent proposal for the approval of his name to the said post. When the Government has not approved the name of Sri Shivananda Mahabalashetti, if at all the Management would like to remove him it becomes the duty of the Management to follow the procedure in accordance with law. The order dated 18.07.2007 clearly discloses that there are certain imputations made against Sri Shivananda Mahabalashetti making allegations that he has submitted fake documents with regard to his educational qualification, he has not obtained any certificate from the competent authorities but concocted them. Secondly, he has also produced some fake Transfer Certificates showing different dates of his birth. When such imputations are made against Sri Shivananda Mahabalashetti, there cannot be any order of dismissal without providing any opportunity to him to contest the allegations made against him. Therefore, it goes without saying that the Management mainly being swayed away by the orders of the Government and also the report of the Deputy Director has passed the dismissal order without holding any enquiry as such. Therefore, having find fault with the Management, the Educational Appellate Tribunal has rightly set aside the said order and ordered for reinstatement and consequential relief.

15. In view of the above said facts and circumstances, I do not find any strong reason to interfere with the orders passed by the Educational Appellate Tribunal. As there is no direction issued by the Educational Appellate tribunal to the Government to pay any salary to Sri Shivananda Mahabalashetti, the appeal filed by the Government is also not sustainable and it is liable to be dismissed. However, it is left open to be considered at the later stage when the order of the Educational Appellate tribunal is put into execution with regard to the payment of salary and other entitlements of Sri Shivananda Mahabalashetti.

16. With these observations, I am of the opinion that both the petitions are devoid of merits and as the Management has dragged Sri Shivananda Mahabalashetti to the Court at each and every stage for his reliefs, in my opinion the petition filed by Management is liable to be dismissed on cost of Rs.10,000/-. Hence, I proceed to pass the following :

ORDER

i. Petition filed by Management W.P. No. 62671/ 2010 is dismissed with cost of Rs.10,000/-.

ii. Petition filed by the State in W.P. NO.65368/ 2011 is dismissed.
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