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2010 DIGILAW 650 (KAR)

Snehalatha Panurang Shetty v. State of Karnataka

2010-05-27

K.GOVINDARAJULU, K.SREEDHAR RAO

body2010
JUDGMENT K. Sreedhar Rao, J: The appellant-petitioner contends that she was" appointed as a lecturer in History in H.G. Junior College on temporary basis for the period from" 1.11.1998 till the end of academic year 2001. The said post is an aided post. The petitioner was removed from service and in her place respondent No.6 is appointed. 2. The management issued a notification calling for applications to fill the post of lecturer in History. The notification was published in Kannada daily 'KANNADAMMA' circulated in Bijapur and Belgaum districts. The 6th respondent applied for the post. The management appointed him and sent his name for approval to the Commissioner of Education. 3. The petitioner submitted objections to the Commissioner stating that the management has adopted dubious methods in publishing the notification calling for appointment; that the publisher of KANNADAMMA' mischievously colluding with the management, did not publish the notification in all papers circulated on 25.9.2003, deliberately with an intention to see that large number of persons who are eligible to apply "should be denied the opportunity to apply. However, for the purpose of record, only in few of the papers circulated for the day, the notification was published in an inconspicuous manner. 4. It is submitted that the 6th respondent is none other than the son in-law of the chairman of the institution and he is the only applicant to the post because of the dishonest and mischievous methods adopted in publishing the notification. The petitioner, therefore, requested the Commissioner of Education not to approve the appointment of the 6th respondent 5. The .Commissioner of Education rejected the objections of the petitioner. Hence, the petitioner filed an appeal under Section 130 of the Karnataka Education Act. In the appeal, the petitioner submitted similar objections regarding surreptitious and dubious methods adopted in publishing the notification and in appointing to the 6th respondent. The petitioner had produced two sets of 'KANNADAMMA' dated 25.9.2003 In one paper, at page 2, the notification calling for applications is printed at the bottom of the left hand side in a box column. But in another copy of the newspaper of the same date, the notification in question has not been printed. On the other hand, some other news item is printed. 6. But in another copy of the newspaper of the same date, the notification in question has not been printed. On the other hand, some other news item is printed. 6. It was further contended that the petitioner being could not have been abruptly removed and in her place 6th respondent appointed the procedure requires that the temporary employee can be removed only by filling up the permanent post in accordance with law. In this case, the procedures have been by passed to see that by hook or crook, the 6th respondent is appointed. 7. Per contra, it was the contention of the management that the petitioner was never appointed as a lecturer and the service certificate issued by the principal is a forged one. It is stated that transparent legal procedures are followed in publishing the notification; the petitioner had not submitted any application. The contention that dubious methods are followed in publishing the notification is stoutly denied. 8. In the appeal, the petitioner made an application to lead evidence. The appellate authority rejected the said request on the ground that there is no procedure in an appeal to record evidence. The petitioner filed W.P. 9285/08 challenging the order rejecting his request to permit him to lead evidence. The Appellate Authority during the pendency of the writ petition, dismissed the• Appeal. This Court dismissed the writ petition as infructuous since the main appeal is disposed of. Against the order of dismissal of the main appeal, the petitioner file the present writ petition. 9. The learned Single Judge in paragraphs 5 and 6 of the order, has made the following observations and dismissed the writ petition: 5. The Appellate Authority having regard to the material on record held that in the absence of relevant material constituting substantial legal evidence of the fact that the petitioner was appointed as part time lecturer in History at H.G. Junior College, Sindagi the reliefs sought for in the appeal were inappropriate. The Appellate Authority having regard to the material on record held that in the absence of relevant material constituting substantial legal evidence of the fact that the petitioner was appointed as part time lecturer in History at H.G. Junior College, Sindagi the reliefs sought for in the appeal were inappropriate. The alleged appointment of the petitioner as part time lecturer not being in accordance with the rules of appointment since the petitioner claimed that she ought to be continued until general recruitment, the Appellate Authority further held that the petitioner did not have locus standi to challenge the action of the management of H.G.Junior College in filling up the vacant post of lecturer by appointing the 6th respondent arid accordingly by order dated'16th December, 2008, Annexure-G, rejected the petition. 6. The petitioner aggrieved by the order Annexure-G has presented this petition. Having heard the learned Counsel for the petitioner and examined the order impugned, in the absence of relevant material constituting substantial legal evidence of being appointed as a part-time lecturer or temporary lecturer in the 5th respondent H. G. Junior College, the Appellate Authority was fully justified in rejecting the appeal. Except for the assertion of the learned Counsel for the petitioner that there is material to establish the appointment on part-time basis, nothing is forthcoming in the writ petition. Indisputably, the general recruitment led to the appointment of the 6th respondent as a in history in the 5th respondent college, as approved by the Government in its Order dated 29.08.2006. In the circumstances, no exception can be taken to the reasons, findings and conclusions arrived at by the Appellate Authority in the order impugned, Annexure-G. Writ petition is without merit and is accordingly, rejected'. 10. It is the specific case of the petitioner that there is absolutely no fair-play and transparency in taking out paper publication. In this regard, it is contended that the management and publisher colluded with each other and deliberately did not give wide publicity. It is only in a few copies of the newspaper the notification was printed to see that eligible persons would not apply so that there is no competition for respondent no.6. This is essentially a disputed question of fact which requires oral and documentary evidence and cross-examination of the parties and other witnesses. It is only in a few copies of the newspaper the notification was printed to see that eligible persons would not apply so that there is no competition for respondent no.6. This is essentially a disputed question of fact which requires oral and documentary evidence and cross-examination of the parties and other witnesses. In this regard the petitioner did make an application, but the Appellate Authority has held that there is no scope for recording of evidence in an appeal. 11. The view taken by the Appellate Authority is incorrect in view of Rule 7 of the Karnataka Educational Institutions (Appeal, Revision and Review) Rules, 1998, which is extracted hereunder: "7. The provisions of Civil Procedure Code to be generally followed: In deciding any question relating to procedure not specifically provided for by these rules, the Appellate Authority, Revision Authority and the Review Authority shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908. A close reading of the above rule clearly shows that the procedure enumerated in the Code of Civil Procedure is to be followed in which event the Appellate Authority acting as a Court of appeal is entitled to record oral and documentary evidence, and after giving full opportunity to both parties to lead evidence on the disputed questions of fact, is required to hear and decide the matter. 12. The contention that the appellant has not challenged the order passed in W.P.9285/08 and therefore, the order of the Appellate Authority rejecting the petitioner's request to adduce oral and documentary evidence has become final and binding, and that the appellant is not entitled to reopen the said question in this appeal, is not a tenable contention. The said writ petition was dismissed as infructuous as the main appeal was already disposed of. The present appeal directly concerns the decision in the main appeal. The legality of the interim order passed would also get covered for consideration in this appeal 13. For the reasons and the discussion made above, we fit and proper that the appeal is to be allowed. The Appellate Authority is directed to conduct an enquiry by giving opportunity to the parties to prove their case by adducing oral and documentary evidence.