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Judgment
Jayant M. Patel, J.—1. The present appeal is directed against the order dated 25.08.2011 passed by the learned Single Judge of this Court in W.P. No. 2593/2006 whereby the learned Single Judge for reasons recorded in the order has dismissed the petition.
We have heard Mr. M.P. Srikanth, learned counsel appearing for the appellant, Mr. Y.D. Harsha, learned AGA appearing for respondents-1 to 3 and 7, Mr. M.S. Purushothama Rao, learned counsel for respondents-4 and 6 and Mr. Krishna S. Dixit, learned Counsel appearing for respondent No. 5.
The contention raised on behalf of the appellant is that the appellant had acquired qualification of M. Phil degree. As per the Government Order dated 09.02.2007 the requirement of M.Phil degree came to be extended upto 16.09.2009, a copy of which is produced at Annexure-R36. He also submitted that so far as requisite marks of not less than 55% is concerned, the appellant i.e., the original petitioner secured marks above 55%. In his submission, Rule 7-A(i) of the Seniority Rules of Part-time Lecturers namely the Karnataka Educational Institutions (Absorption of Persons working as Part Time Lecturers in the Aided Private Educational Institutions) (Special) Rules, 2003 (hereinafter referred to as the ''Rules'') has also not been properly considered. As per the appellant, respondent No. 5 and the appellant both had joined duty by appointment order dated 28.06.1993, which is the same date and therefore when the appellant was senior in age in comparison to respondent No. 5, it was required for the Management-respondent No. 4 to treat the appellant as senior and to forward the proposal for absorption of the appellant instead of respondent No. 5, who is junior to the appellant. He submitted that when the appellant was qualified for absorption as a full time lecturer, there was no reason not to forward by the Management for absorption. In his submission, the illegality continued even at the stage of the Commissioner and the State Government, who ultimately passed the order for absorption of respondent No. 5. As per the learned counsel, the aforesaid aspects are not properly considered by the learned Single Judge and hence this Court may consider in the present appeal.
In our view, as such if the Rule 7 of the Rules of Seniority, which is pressed for service is considered, we do not find that the same would be of any help to the appellant because such Rule is to apply only for the inter-se seniority of the persons absorbed and it is not for the inter-se seniority of part time lecturers. Rule 7 of the Rules for ready reference is reproduced as under:
"7. Seniority- The inter-se seniority of the persons absorbed under these rules shall be determined as follows, namely:--
(a) the persons who have passed National Education Test or State Level Education Test qualification shall be senior to the persons who have not passed the said tests;
(b) the inter-se seniority of the persons who have passed National Education Test or State Level Education Test shall be determined according to the length of service of the said lecturers in the part time service, and if the length of service of two or more persons is same the older in age treated as senior to the person who is younger in age."
When the status of the appellant as well as of respondent No. 5 prior to the absorption was as that of part time lecturer and not as that of a person absorbed as a full time lecturer, the said Rules cannot be pressed in service nor can be applied for buttressing the case of the appellant as canvassed. The learned Single Judge, as such, has rightly held that the said Rule had no applicability.
On the aspect of acquiring degree of M.Phil, it needs to be recorded that the order for absorption has been passed on 29.11.2005. At the relevant point of time, as per the earlier Government resolution dated 12.02.2004, those persons who had not passed the requisite qualification, were permitted to acquire the qualification within a period of three years from 12.02.2004. It is true that respondent No. 5 did not hold the qualification of M.Phil degree, which was one of the requirement for full time lecturer. But, as per the policy prevailing then, he could have acquired the qualification within a period of three years from 12.02.2004 and the outer limit can be said as 11.02.2007. Respondent No. 5 had appeared for the examination of M.Phil degree in February-2007 but it is a different matter that the result was declared later on, but the fact remains that he has successfully passed M.Phil examination which was conducted in February-2007. Under circumstances, it can be said that the respondent No. 5 did acquire the requisite qualification for the post of full time lecturer.
So far as the appellant herein is concerned, it is an undisputed position that he did not fulfill the said requirement of qualification of M.Phil prior to February-2007 and as per the appellant he has passed M.Phil examination only on 25.08.2009 which is about two years later than the qualification acquired by respondent No. 5. An attempt was made to contend that by virtue of the Government Order dated 09.02.2007 such period to acquire the requisite qualification was extended up to 16.09.2009 and therefore non-acquiring of the qualification of M.Phil prior to February-2007 should not come in the way of the appellant in pursuing the matter for absorption. This cannot be countenanced for two reasons one is that on 09.02.2007 by the Government resolution the period to acquire qualification was extended to only those persons whose services were regularized. Also, the Government resolution dated 12.02.2004 does not speak of persons to be regularized or to be absorbed. The second reason is that even if it is considered for the sake of examination that the appellant acquired qualification of M.Phil in August-2009 then also one cannot get away from the fact that respondent No. 5 acquired qualification much prior to the appellant. Hence, on a comparative merit also one can say that the respondent No. 5 had higher merit in comparison to the appellant herein.
It is true that as per the Rules, part time lecturers working with private Aided Educational Institutions were considered for absorption as full time lecturers but there is no express provision under the Rules that it has to be considered on the basis of seniority in age. As observed by us Rule 7, which has been pressed into service is not at all applicable. Therefore, the resultant effect is that two persons have joined duty as part time lecturers by the appointment order issued on the same day. Here again the additional aspect is that the respondent No. 5, even as per the Management, had worked one year prior to the date of joining duty i.e., 1992-93. If the total length of experience is considered with break in service then also the respondent No. 5 would stand on a higher pedestal than the appellant herein. The contention of the respondent No. 4-Management was that it is on account of the said additional aspect the proposal of respondent No. 5 was forwarded for absorption first. In our view, in the absence of any specific Rule provided for absorption of the person who is senior in age, if the Management has considered the additional experience for forwarding of the name of respondent No. 5 by keeping aside the name of the appellant, such an approach cannot be said to be unreasonable or arbitrary because respondent No. 5 is having better experience as a part time lecturer or rather experience for a longer period in comparison to the appellant herein.
In view of the aforesaid, we find that whether the appellant was also holding degree with 55% and more marks can be said as inconsequential since on the other aspects namely, longer experience as well as regarding acquiring qualification of M.Phil, respondent No. 5 would stand on higher pedestal on merits in comparison to the appellant.
Under the circumstances, if the respondent No. 4-Management has forwarded the proposal to the Government for absorption of respondent No. 5 as full time lecturer and the Government has accepted the same, the decision taken by the learned Single Judge not to interfere with the decision, in our view, would not call for any interference.
The learned counsel for the appellant lastly contended that pending the present litigation, the respondent No. 4-Management has forwarded the second proposal for absorption of the appellant in the subsequent post as he is eligible for being a full time lecturer. As per the learned counsel the same is also positively recommended by the concerned Governmental authority but the final decision by the competent authority is yet to take place. He submitted that the observations made by this Court namely the learned Single Judge as well as in the present Judgment may not come in the way of the appellant in pursuing the second proposal.
In our view, the observations made are limited to the order, which came to be issued in 2005 and the challenge was also relating thereto. The second proposal, if any issued, would stand on its independent consideration and the same as such is outside the subject matter of the present appeal. Hence, we find that no further observations need be made.
In view of the above, we do not find any case for interference. Hence, the appeal is dismissed.
In view of the dismissal of the appeal, all pending applications (I.A. Nos. 1/16, 2/11, 2/13, 3/13, 4/13) also stand disposed off.