N.S. Govindraddi vs Commissioner for Public Instructions, Dharwad

A.S. Bopanna, J.—The petitioner is before this Court assailing the communications dated 20.03.2013 and 13.01.2014 which are impugned at Annexures-D and E to the petition. In that light, the petitioner is seeking issue of mandamus to direct respondent Nos. 1 and 2 to consider the case of the petitioner pursuant to the recommendations dated 04.02.2013 and 07.08.2013 as at Annexures C & F to the petition. In that direction, the petitioner is seeking that respondent Nos. 1 and 2 be directed to grant approval for promoting the petitioner to the post of Vice-Principal in the Karnataka Education Board High School being run by the third respondent Board.

The petitioner and the fourth respondent are serving as Assistant teachers in the school being run by the third respondent-Board. Pursuant to the appointment made by the third respondent-Board, the petitioner joined the services on 01.06.1999 in Vidyaranya High School run by the third respondent-Board while the fourth respondent joined the services on 05.06.1999 and both of them belonged to the ST category. The said appointments made by the third respondent-Board was approved by the competent authority on 31.08.1999. Thereafter both the petitioner and the fourth respondent have been serving the third respondent-Board in the respective schools where they have been working.

The present issue relates to the appointment of the Vice-Principal to the Karnataka Education Board High School being run by the third respondent-Board. The third respondent-Board who had maintained the seniority list of the Assistant Teachers had shown the petitioner to be senior to the fourth respondent keeping in view that the petitioner had joined the services on 01.06.1999 while the fourth had joined on 05.06.1999. It is in that view the third respondent Board through the recommendation dated 04.02.2013 and 07.08. 2013 as at Annexures-C and F had proposed the name of the petitioner to be appointed as the Vice-Principal. Though such recommendation was sent, the competent authority through the communication dated 20.03.2013 and 13.01.2014 as at Annexures-D and E keeping in view the regulations made through the notification dated 31.01.2001 have directed that the name of the fourth respondent be recommended to be appointed as the Vice-Principal. The petitioner therefore claiming to be aggrieved by the same is before this Court.

Respondents Nos. 1 and 2 have filed their objection statement once again placing reliance on the notification dated 31.01.2001 and contending that the communication been addressed to recommend the name of the fourth respondent since as contained in the said rules, the person older in age will have to be considered as senior and therefore, the fourth respondent being older to the petitioner and their appointments being approved on the same day, the fourth respondent would have to be considered as the senior. The fourth respondent also filed the objection statement to the same effect and therefore the respondent Nos. 1, 2 and 4 seek to sustain the action of respondent Nos. 1 and 2 in addressing the communication. The third respondent through their objection statement would seek to sustain their action in recommending the name of the petitioner since according to them as per the seniority list maintained by them, the petitioner is senior to the fourth respondent.

In the light of the rival contentions and the sequence of events noticed above, there can be no dispute to the fact that through the notification dated 31.01.2001 the manner in which the seniority is to be reckoned been provided and in Rule 3(iv) therein it is indicated that if the date of approval of appointment of more than one teacher happens to be on the same day, the seniority shall be fixed on the basis of the date of birth and the person older in age shall become senior. The question however is as to whether the said notification dated 31.01.2001 is to be considered as prospective or can it be applied retrospectively ? Insofar as the date of appointment and if in that light a consideration is made, whether the said rule could be made applicable to the instant facts ? Insofar as the fact that the Rules through the notification dated 31.01.2001 cannot be made applicable for reckoning the seniority to the appointments which have been approved earlier is no more res-integra inasmuch as this Court in W.P. No. 51225/2012 dated 16.04. 2013 had considered a similar issue and on taking note of the decisions rendered by a Division Bench of this Court in WA No. 77/2012 held that the notification dated 31.01.2001 cannot be made applicable to the appointment made earlier to the said date and such appointment been approved.

If the said position of law is kept in view and the instant facts are noticed, though the approval of the appointment for the purpose of grant-in-aid in respected of the petitioner and the fourth respondent was made on the same day i.e., on 31.08.1999, the petitioner had joined the services on 01.06.1999 while the fourth respondent had joined the services on 05.06.1999 and in that light the third respondent-Board had considered the petitioner to be senior to the fourth respondent and the said position had continued in the same manner throughout and no challenge had been raised to the seniority list prior to the recommendation being made to the fourth respondent. The communication dated 13.01.2014 at Annexures-D and E would therefore not be sustainable. They are accordingly quashed.

A direction is issued to respondent Nos. 1 and 2 to take note of the recommendations dated 04.02.2013 and 07.08.2013 as at Annexures-C and F and in that light, grant the approval to the appointment of the petitioner as the Vice-Principal of the Karnataka Education Board High School being run by the third respondent Board, as recommended by them. The said process shall be concluded as expeditiously as possible.

The petition is accordingly disposed of.