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2002 DIGILAW 692 (KAR)

JAYASHREE NAYAK v. STATE OF KARNATAKA

2002-11-14

P.VISHWANATHA SHETTY

body2002
P. VISHWANATHA SHETTY, J. ( 1 ) IN this petition, the petitioner who was appointed as a Physical Culture instructor in the 5th respondent-College has sought for a direction to regularise her services as a Lecturer in the 5th respondent-College. ( 2 ) A few facts which are not in serious dispute may be stated as hereunder: the petitioner was appointed as a Physical Culture Instructor on llth September, 1989. She continued in that position till 31st March, 2002 and her appointment was being renewed on contract basis every year and she was being paid a sum of Rs. 1,040/- p. m. A fresh option was given to the petitioner to continue her service on contract basis by means of communication dated 29th June, 2001, a copy of which has been produced as Annexure-C. Subsequent to the communication (Annexure-C) dated 29th June, 2001, during the term of her appointment as per Annexure-C the petitioner was paid a sum of Rs. 6,000/- p. m. as her salary. In the appeal filed by the petitioner before the 2nd respondent seeking for regularisation of her service as a Lecturer in the light of the judgment of the Hon'ble Supreme Court in the case of Karnataka State private College Stopgap Lecturers Association v State of Karnataka and others, the 2nd respondent-Commissioner by means of his order dated 19th September, 2000 had taken the view that it is for the State Government to make an order for her regularisation, a copy of which has been produced as Annexure-A. However, in the course of order (Annexure-A), the 2nd respondent has recorded a finding that the service rendered by the petitioner as a stopgap Physical Culture Instructor during the period from 1989 to 1997 should be treated as a stopgap lecturer. It is useful to refer to the relevant portion of the observation made in Annexure-A which reads as follows:"her plea, is that in view of the Government Orders she may be treated on par with other stopgap lecturers and given, the benefit of services rendered up to 1997 also. That she served as a stopgap physical Culture Instructor from 1989 is not disputed. But, whether the services rendered by her from 1989 to 1997 could be considered for regularisation is a matter to be decided by the government. That she served as a stopgap physical Culture Instructor from 1989 is not disputed. But, whether the services rendered by her from 1989 to 1997 could be considered for regularisation is a matter to be decided by the government. The Administrative Officer of the Academy of General education, Manipal who was present is not averse to her regularisation provided the Government agrees. From the records it is seen that if the services rendered by her as a non-teaching physical Culture Instructor is considered then she would be placed under Category III. ( 3 ) IN the course of the proceedings before the 2nd respondent, the administrative Officer of the 5th respondent-College also stated that the 5th respondent-College has no objection to regularise the service of the petitioner. Thereafter, in the light of the order (Annexure-A), the 5th respondent-College made a recommendation through the 3rd respondent for regularisation of the service of the petitioner; and without any basis the 2nd respondent by means of his communication dated 19th June, 2001, a copy of which has been produced as Annexure-B recommended to the 1st respondent to regularise her services. It is useful to refer to the said communication which reads as follows: ( 4 ) WHEN the matter stood thus, the 1st respondent issued Notice dated 4th June, 2002 to the petitioner indicating that the 1st respondent is of the view that the order passed by the 2nd respondent as per annexure-A requires to be rejected. It is at this stage, the petitioner has presented this petition seeking for a direction to the respondents to regularise her service. ( 5 ) SRI A. R. Holla, learned Counsel appearing for the petitioner submitted that since the State Government itself has taken the view that all Physical Culture Instructors should be treated as teaching staff and since the 2nd respondent has recorded a finding that the petitioner's service during the period 1989 to 1997 should be treated as a stopgap lecturer in the light of the judgment of the Hon'ble Supreme Court in the case of Karnataka State Private College Stopgap Lecturers Association, supra, the respondents are required to regularise the services of the petitioner. He submitted that the view taken by the 2nd respondent being legally correct, valid and consistent with the view expressed by the supreme Court in the case of Karnataka State Private College Stopgap lecturers Association, supra, the proceedings initiated by the 1st respondent to review order (Annexure-A) passed by the 2nd respondent is wholly without the authority of law and as such a direction is required to be issued to the 1st respondent to regularise the service of the petitioner. He also submitted that since the Supreme Court in the case of p. S. Ramamohana Rao v Andhra Pradesh Agricultural University and another , has taken the view that Physical Education teachers are also teaching staff, it is not permissible for the respondents to take a view that the petitioner was not discharging her duties as a stopgap Lecturer during the period 1989 to 1997. ( 6 ) HOWEVER, Sri Srinivasamurthy, learned Additional Government advocate appearing for the respondents 1 to 3 submitted that since the appointment of the petitioner was not approved by the State as a stopgap lecturer during the period in question, the petitioner is not entitled for the benefit of the judgment of the Supreme Court rendered in the case of Karnataka State Private College Stopgap Lecturers Association, supra. ( 7 ) THE only question that would arise for consideration in this petition is as to whether the respondents should be directed to regularise the service of the petitioner as a stopgap Lecturer? it is not in dispute that the petitioner was appointed as a Physical culture Instructor on 11th September, 1989. The discharge of duties by the petitioner as a Physical Culture Instructor in my view has to be considered as a teaching staff. In fact this view also is supported by the decision of the Supreme Court in the case of P. S. Ramamohana Rao, supra, relied upon by Sri Holla. In the said decision, at paragraph 10, the Supreme Court has observed as follows:"10. From the aforesaid affidavit it is clear that a. Physical director has multifarious duties. He not only arranges games and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds but also arranges inter-class and inter-college tournaments and accompanies the students team when they go for the inter-University tournaments. From the aforesaid affidavit it is clear that a. Physical director has multifarious duties. He not only arranges games and sports for the students every evening and looks after the procurement of sports material and the maintenance of the grounds but also arranges inter-class and inter-college tournaments and accompanies the students team when they go for the inter-University tournaments. For that purpose it is one of his important duties to guide them about the rules of the various games and sports. It is well-known that different games and sports have different rules and. practices and unless the students are guided about the said rules and practices they will not be able to play the games and participate in the sports in a proper manner. Further, in our view, it is inherent in the duties of a Physical director that he imparts to the students various skills and techniques of these games and sports. There are large number of indoor and outdoor games in which, the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from the rules applicable to these games". ( 8 ) FURTHER, the State Government also by means of its order dated 17th November, 1997 had ordered that the Physical Education Teachers/physical culture Instructors working in First Grade Colleges are to be considered as teachers. It is to this effect the 2nd respondent on consideration of the materials on record and taking into account the views expressed by the Administrative Officer has also found the petitioner was discharging her duties as a Physical Culture Instructor from 1989 to 1997 and should be treated as a stopgap Lecturer. He had also made a recommendation to the State Government by means of annexure-B referred to earlier for the regularisation as a stopgap Lecturer. The Hon'ble Supreme Court in the case of Karna. ta. fw. State Private College stopgap Lecturers Association, supra, has taken the view that such of those stopgap Lecturers who were in service on 29th January, 1992 and have completed three years of service as on that date are entitled for regularisation of service as stopgap Lecturers. The Hon'ble Supreme Court in the case of Karna. ta. fw. State Private College stopgap Lecturers Association, supra, has taken the view that such of those stopgap Lecturers who were in service on 29th January, 1992 and have completed three years of service as on that date are entitled for regularisation of service as stopgap Lecturers. It is useful to refer to the observation made by the Supreme Court at paragraph 7 (1) which reads as follows:" (1) Services of such temporary teachers who have worked as such for three years, including the break till today shall not be terminated. They shall be absorbed as and when regular vacancies arise". ( 9 ) IT is also necessary to point out that the petitioner has worked as a physical Culture Instructor continuously from 1989 till June 2001 on payment of a paltry sum of Rs. 1,040/- p. m. and thereafter during the academic year 2002 she had worked as a Physical Culture Instructor by- drawing only a sum of Rs. 6,000/- p. m. Under these circumstances, if the petitioner had continued to work as a Physical Culture Instructor on a stopgap arrangement ever since the year 1989 by drawing a minimum salary with a fond hope that her services may be regularised at some time or the other, there is absolutely no justification at this stage to deny the relief to the petitioner on the grounds urged by Sri Srinivasamurthy, learned Additional Government Advocate. Therefore, looked at from any angle, I am of the view that the petitioner is entitled for the relief sought for by her. In the light of the discussion made above, I make the following: order (I) The 1st respondent is directed to regularise the services of the petitioner as a stopgap Lecturer in the 5th respondent- college in the light of the law laid down by the Supreme court in the case of Karnataka State Private College Stopgap lecturers Association, supra. (II) The respondents 4 and 5 are directed to take the petitioner to duty within a week from the date of receipt of a copy of this order. The 1st respondent is given four weeks' time from the date of receipt of a copy of this order to comply with the direction given above. ( 10 ) IN terms stated above, this petition is allowed and disposed of. The 1st respondent is given four weeks' time from the date of receipt of a copy of this order to comply with the direction given above. ( 10 ) IN terms stated above, this petition is allowed and disposed of. ( 11 ) SRI L. K. Srinivasamurthy, learned Additional Government Advocate is given four weeks' time to file his memo of appearance. --- *** --- .