Sunilkumar vs State of Karnataka and others

Ashok B. Hinchigeri, J.—A deaf and dumb person is before the Court seeking the grant-in-aid for the post of Drawing Teacher. His appointment to the said post is already approved, though without the aid however. He is appointed as a Drawing Teacher in 1998 in the fifth respondent Jyothi High School, being managed by the fourth respondent Pandit Jawaharlal Nehru Multipurpose Society. He has raised the challenge to the third respondent�s memorandum, dated 05.02.2008 (Annexure-C), which states that the petitioner�s appointment as the Drawing Teacher is approved but without the grant-in-aid.

Sri. Vilaskumar, learned counsel tor the petitioner submits that the petitioner has been working as a Drawing Teacher from 1998. He submits that the Block Educational Officer and other officers of the Education Department have been holding the periodical inspection of the fifth respondent High School. They have never raised any objection with regard to the petitioner�s eligibility or working. He submits that the refusal to give the aid to the Drawing Teacher appears to be on the ground that the proposal in respect of the petitioner�s post is submitted belatedly.

Sri. R.V. Nadagouda, the learned Additional Advocate General appearing for the respondent Nos. 1 and 3 raises the preliminary objection. He submits that the impugned memorandum is passed in 2008 and that the petitioner has approached this Court four years thereafter, that is in 2012. He submits that the petitioner having accepted the terms and conditions of the impugned office memorandum, is estopped from turning around and raising the challenge to one condition in the impugned office memorandum. He submits that the petitioner did not possess the eligibility criteria as on the date of his appointment as the Drawing Teacher. He submits that the petitioner claims to have acquired the eligibility criteria subsequent to his appointment. He draws my attention to the letter, dated 09.08.2012 (Annexure-R3) issued by the Additional Commissioner of Public Instructions to the Deputy Director of Public Instructions. The letter states that the Management has fabricated the documents and cheated the Education Department. It is alleged that the documents are fabricated, because the petitioner is shown as working when he was actually acquiring the Diploma qualification.

He submits that nobody has any fundamental right to claim the grant-in-aid. He sub mils that the approval of appointment with aid was submitted belatedly only in 2007.

He submits that the petitioner does not fulfil the conditions of the notification, dated 27.01.2007.

Sri. R.J. Busare, learned counsel appearing for the respondent Nos. 4 and 5 submits that the Management has appointed the petitioner to the post of Drawing Teacher only after satisfying that he possesses the required qualification.

Sri. S.S. Kumman, learned counsel appearing for the respondent No. 2 submits that the respondent No. 2 has passed the resolution based on the Government�s notification, dated 27.01.2007.

The submissions of the learned counsel have received my thoughtful consideration.

I do not propose to reject this petition on the ground of delay and laches. The petitioner, a deaf and dumb person, has stated in para 7 of the memorandum of the writ petition that he has been making the representations to the Department as well as to the respondent Nos. 2 and 3 for the extension of grant-in-aid. This statement has not been denied by the respondents.

As held by the Hon''ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katigi and others reported in (1987) 2 SCC 107, the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice. It is further observed therein that ordinarily a litigant does not stand to benefit by filing the case late. It is not even the case of the respondents that the petitioner has gained or derived any advantage by coming late to the Court or that in the meanwhile the third party interests have come in or that the injustice meted out to the petitioner is incapable of being remedied after four years.

It is profitable to refer to what the Apex Court has said in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 SCC 649. Para 21 of the said decision is extracted herein below:

"21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2.(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3.(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4.(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

22.6.(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice

21.7.(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally un-fettered free play.

21.8.(viii) There is a distinction between inordinate delay and a delay of short duration of few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second call for a liberal delineation.

21.9.(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10.(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11 .(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12.(xii) The entire gamut of fuels are to carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13.(xiii) The State or a public body of an entity representing a collective cause should be given some acceptable latitude

The courts are required to adopt a liberal and a justice-oriented approach; their approach should not be pedantic or technical. I over-rule the preliminary objection.

The first question that arises for my consideration is whether the impugned order is a reasoned order? As held by the Apex Court in the case of Union of India and another v. International Trading Company and others reported in (2003) 5 SCC 437, the basic requirement of Article 14 is fairness in action by the State. The State must act validly for discernible reasons. Any decision un-informed by reason is per-se arbitrary.

The impugned order contains no reasons whatsoever for turning down the request of the petitioner and the respondent Nos. 4 and 5 for denying the aid to the petitioner. It only states that a decision is taken in the three Members� Committee meeting, presided over by the Chief Executive Officer of Zilla Panchayat, to the effect that the petitioner�s appointment has to be approved but without aid. It is not known why the said Committee took such a decision. It is also not known whether the decision of the Zilla Panchayat is binding upon the Government; if so under what provision of law is not forthcoming.

Now an attempt is being made to justify the impugned memorandum by stating that it is in consonance with the Government Order, dated 27.01.2007. However, there is no mention of such a Government order in the impugned memorandum. The authorities are attempting to justify the impugned order with reference to the reason not stated in the impugned memorandum. Such a justification runs contrary to the Apex Court�s judgment in the case of Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi reported in AIR 1978 SC 851, Para 8 of the said decision is extracted herein below:

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds latter brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p. 18):

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself"

Orders are not like old wine becoming better as they grow older".

I therefore answer question No. 1 in the negative.

The second question that arises for my-consideration is whether the irrelevant factors have weighed with the decision-makers. The impugned order is sought to be justified with reference to the Additional Commissioner�s letter, dated 09.08.2012. The Additional Commissioner has taken serious exception to the petitioner working in the fifth respondent School and pursuing his Diploma Education simultaneously. The simultaneity is no hurdle, if the timings of the fifth respondent School and of the College, where he has studied and acquired the Diploma qualification, are different. The minimum that the authorities ought to have done was to hold a summary enquiry, after giving opportunities to the petitioner, respondent Nos. 4 and 5. With no regard for the sacrosanct principles of natural justice, the Additional Commissioner has passed an unilateral order, which goes to the extent of saying that the Management has cheated the Education Department. As the said communication visits the Management with serious civil consequences, such a communication ought not to have been issued without holding at least a semblance of enquiry.

Be it as it may, the fact that the petitioner acquired Diploma while he was working in the fifth respondent School cannot be fatal to the Management�s proposal for extending aid to the post of Drawing Teacher. The relevant consideration would be whether the petitioner had the eligibility criteria to be appointed as the Drawing Teacher. The impugned office memorandum is completely silent on that material aspect of the matter. The relevant factors are eschewed from consideration and the irrelevant factors are taken into consideration. The second question is accordingly answered against the respondent Nos. 1 to 3.

The third question that arises for my consideration is whether the proposal submitted by the Management for the approval of the appointment of the petitioner as the Drawing Teacher with aid could have been rejected on the ground of delay? It is not known why the Management took nearly nine years to submit the petitioner�s proposal to the Department of Public Instructions. But the delay on the part of the Management cannot militate against the petitioner. The Department of Public Instructions ought to have called for an explanation from the Management for the delay in submitting the proposals in respect of the application. I am afraid both the Government and the Management have not shown the sensitivity that the matter deserves in view of the physical disability with which the petitioner is unfortunately born. It may not be out of contexts to refer to the statement of objects and reasons of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the �said Act�). The said Act is enacted with the avowed objective of laying down a strategy for comprehensive development of the programs and services and equalization of opportunities for persons with disabilities and to make special provision for the integration of persons with disabilities into the social mainstream. Chapter 7 of the said Act deals with affirmative action. Sections 42 and 43 of the said Act require the State to provide aids and appliances to the persons with disabilities, for the preferential allotment of land at concessional rates, etc. These beneficial provisions cannot be read with a non-benevolent eye.

In the case on hand, the petitioner is not agitating for any preferential or reservational right. He is only demanding the same benefits which were given to those teachers and non-teachers working in the fifth respondent School along with him in 1998. On the grounds that there is delay in the submission of the proposals by the Management or that the petitioner acquired Diploma qualification while in service, the grant-in-aid cannot be denied.

The respondent Nos. 1 and 3 ought to have perused the earlier inspection reports for satisfying themselves as to whether the petitioner was working in the fifth respondent School from 1998. But the impugned office memorandum is bereft of application of mind and of the consideration of the records.

For all the aforesaid reasons, quash the impugned office memorandum insofar as it pertains to the denial of grant-in-aid and direct the respondent Nos. 1 and 3 to consider the petitioner�s case for the grant-in-aid in the letter and spirit of this order. The respondent Nos. 1 and 3 shall pass appropriate order as expeditiously as possible and in any case within an outer limit of two months from the date of the issuance of the certified copy of today''s order. No order as to costs.