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2007 DIGILAW 366 (KAR)

DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS, BIJAPUR v. MALLIKARJUN CHANDRAMAPPA CHANDAKAWATE

2007-06-25

D.V.SHYLENDRA KUMAR

body2007
ORDER This is a most unreasonable writ petition filed by the petitioners even after suffering a judgment and decree to which they were parties before the Educational Appellate Tribunal and continue to act in contempt of the orders passed by the Karnataka Educational Appellate Tribunal in terms of a specific order passed on 19-12-2005. 2. Respondent 1 was working as a peon in the respondent 2-a private aided educational institution who was aggrieved by resolution passed by the management in resolving to promote the respondent 3 as an attender over and above the respondent 1. That resolution of the management dated 25-4-1995 was questioned by the respondent 1 before the Tribunal and that appeal came to be allowed in EAT appeal No.5 of 1995 in terms of the order dated 13-10-1999 (copy at Annexure-A), which reads as under: "ORDER The present appeal filed under Section 10 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975, is hereby allowed. The impugned resolution dated 25-4-1995 passed by the 1st respondent-institutions giving promotion to the 4th respondent to the post of Attender and thereby filling the vacant post of Attender in A.K Nandi Composite Pre-University College, Almel, is hereby set aside. The 1st respondent-institution is hereby directed to give promotion to the appellant to the post of Attender and thereby filling up the existing vacancy in A.K Nandi Composite Pre-University College, Almel". 3. The management, thereafter it appears passed a resolution dated 17-8-2000 according promotion to the respondent 1 in place of respondent 3 who had been promoted earlier and which order had been questioned. 4. The respondent 3-promptly questioned this resolution of the management by filing EAT No. 6 of 2000. It appears there was an interim order of stay of the resolution passed by the Tribunal. But, this order of stay came to be vacated on 11-1-2001 though the appeal itself was dismissed thereafter as on 31-7-2002. 5. It further transpires that subsequent to the Tribunal vacating its interim order on the strength of the earlier order passed by the Tribunal in his favour, the respondent 1 sought for working in the post of Attender and the management also did pass a further resolution on 18-7-2001 and it is the version of the respondent 1 that he has reported to duty based on this resolution as on 1-8-2001 and has worked in that capacity thereafter. 6. 6. It is the version of the writ petitioners-Deputy Director and Joint Director of Public Instructions, who took their time to approve this resolution of the management that in fact such resolution had been approved in terms of the memorandum dated 30-4-2003 (copy at Annexure-C) and resolution of the management should be given effect to from this day and that it will also be subject to final orders to be passed by the Courts etc. 7. Whether the resolution was approved from this day or not, the respondent 1 appears did not get his salary in the post of Attender and as irony could have it, the date of the approval order passed by the petitioners approving the resolution of the management promoting the respondent 1 to the post of Attender was on the day of his retirement on superannuation from service. The net effect can only be that the respondent 1 does not get the benefit of his promotion to the post of Attender. 8. In the light of such development, it appears the respondent 1 had moved the Tribunal seeking for execution of the judgment dated 13-101999 where under the Tribunal had directed the respondent 1 to be promoted to the post of attender from that day. 9. It is for such purpose, the Execution Petition No. 47 of 2001 had been filed. In the execution petition, the respondent 1 it appears had claimed payment of difference of salary from May 1995 to July 2001 as it appears the petition had been filed in that year and also for initiating contempt proceedings against the judgment-debtors amongst whom figured the present writ petitioners and such petition came to be ordered on 19-12-2005, which reads as under: "ORDER The petition is allowed, judgment-debtors 2 and 3 are directed to approve the resolution dated 1-8-2001 passed by judgment-debtor 1 giving effect to it from 1-8-2001 granting promotion to the decree-holder and he shall be paid the arrears of salary. It seems no salary has been paid to the decree-holder and he filed calculation memo claiming entitlement for salary from October 1999. If he was paid the salary as peon, he is entitled for the difference of salary including the difference due to revision of pay D.A. etc. Judgment-debtors 2 and 3 shall comply this order within a month or else proceedings for contempt of Court shall be ensued inform. If he was paid the salary as peon, he is entitled for the difference of salary including the difference due to revision of pay D.A. etc. Judgment-debtors 2 and 3 shall comply this order within a month or else proceedings for contempt of Court shall be ensued inform. Call on 11-1-2006". 10. The writ petitioners did not seem to have deterred even then nor showed any inclination to give effect to the order and thereafter the Tribunal followed up by issue of a notice dated 23-12-2005 (copy at Annexure-D) apprising the writ petitioners that unless they report compliance with the orders passed by the Tribunal within a period of one month thereafter the Tribunal was inclined to initiate contempt proceedings. 11. It is at this stage, it appears the petitioners have approached this Court by filing the present writ petition seeking for quashing of notices, one dated 23-12-2005 (copy at Annexure-D) and another issued subsequently dated 28-1-2006 (copy at Annexure-E) for the very cause. 12. Petitioners instead of satisfying the Tribunal either they have complied with the directions and orders of the Tribunal or giving justification for having not complied till then, have presented this writ petition putting forth most irrelevant, untenable and illogical grounds in support of the writ petition. 13. I have heard Sri Khureshi, learned Additional Government Advocate appearing for the petitioners and Sri M.B. Chandrachooda, learned Counsel for respondent 1. 14. Even after hearing Sri Khureshi, learned Additional Government Advocate, he is not able to make good even a single ground urged in support of the writ petition. On the other hand, the very order passed by the petitioners on 30-4-2003 betrays the conduct of the petitioners who are keen more to deny any benefit to the respondent 1 than for passing any bona fide orders in the exercise of their powers either as Deputy Director or as Joint Director of Public Instructions. 15. On the other hand, the very order passed by the petitioners on 30-4-2003 betrays the conduct of the petitioners who are keen more to deny any benefit to the respondent 1 than for passing any bona fide orders in the exercise of their powers either as Deputy Director or as Joint Director of Public Instructions. 15. Though Sri Khureshi, learned Additional Government Advocate has sought to support the order pointing out that the petitioners could not have approved the resolution of the management any time earlier in view of the pendency of the Court cases and stay orders which had come in the way of the matter being taken up by the petitioners earlier and at any rate before 31-7-2002 when the Tribunal dismissed the appeal filed by the respondent 3 against the resolution of the management which had been sought for approval, neither the order nor the subsequent conduct of the petitioners support this version of the writ petitioners. 16. Assuming that the pendency of any case was in the way of the petitioners giving effect to or approving the resolution, all impediments came to an end by 31-7-2002 when the Tribunal dismissed the appeal preferred by the respondent 3. In fact, the so-called impediment ceased to exist even earlier i.e., as on 11-1-2001 when the Tribunal vacated the interim order that it had granted in the appeal before it. In fact, it is thereafter that the management passed a resolution seeking for approval of appointment of the respondent 1 as the attender in the school. 17. The writ petitioners have not demonstrated their bona fides by giving effect to or approving the resolution of the management in terms of the order passed on 30-4-2003, from the date of the order of the Tribunal dismissing the appeal of the 3rd respondent as on 31-7-2002 or in extending the benefit in terms of the order/direction issued by the Tribunal even thereafter. 18. Submission of Sri Chandrachooda, learned Counsel for respondent 1 is that the writ petitioners never approved the resolution of the management till the date of his retirement from service though the respondent 1 has been working in the post of Attender with effect from 1-8-2001. 19. 18. Submission of Sri Chandrachooda, learned Counsel for respondent 1 is that the writ petitioners never approved the resolution of the management till the date of his retirement from service though the respondent 1 has been working in the post of Attender with effect from 1-8-2001. 19. One another submission of Sri Khureshi, learned Additional Government Advocate appearing for the petitioners is that if the respondent 1 had admittedly worked in the post of Attender only with effect from 1-8-2001 and in the light of such facts, the Tribunal could not have issued directions to the writ petitioners to give salary to the respondent 1 on the difference of pay scale from the day before which he had actually worked; that the order dated 19-12-2005 is one which goes beyond the judgment etc. 20. A perusal of the order does not necessarily indicate this fact. The order in fact is one calling upon the petitioners to pay difference in salary from the date of promotion i.e., only with effect from 1-8-2001 and the significance of salary from October 1999 is only for the purpose of the petitioners being required to pay the salary to the respondent 1 in the post of peon as it had been contended that even that salary was not being paid etc. 21. Mr. Chandrachooda, learned Counsel for respondent 1 also submits that the respondent 1 even in terms of the order had sought for arrears of salary being the difference amount for working in the post of Attender only with effect from 1-8-2001 and not any time earlier to that date. 22. Writ petitioners having not implemented the directions and the orders passed by the Tribunal in any understanding of the matter whether as is sought to be projected by the learned Additional Government Advocate or as was understood by the respondent 1 or in any other manner, there is absolutely no bona fide on their part and the specific stand of the petitioners being that the approval can take effect only from 30-4-2003 which stand is clearly most untenable and illogical and not in terms of the orders passed by the Tribunal, they have no locus even to maintain the present writ petition which deserves to be dismissed as one not for ventilating any bona fide grievance but only to harass the poor first respondent. 23. 23. This writ petition is one which is frivolous and more an abuse of the process of this Court to deny the respondent 1 the meager difference of salary if at all he could have received on approving the salary payable to him in the post of attender with effect from 1-8-2001. 24. Writ petition is dismissed levying exemplary cost on the petitioners at Rs. 5,000/- on each of the petitioners. 25. Cost to be deposited before this Court within four weeks from today, failing which the registry is directed to issue a certificate in favour of the respondent 1 which can also be executed before the Tribunal as part of arrears of salary which he is entitled to, in respect of which the Tribunal can also initiate contempt proceedings on failure of payment of costs.