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2011 DIGILAW 1150 (KAR)

State of Karnataka, by its Secretary, Department of Primary Education, Bangalore v. N. G. Shivalingalppa, Davangere Taluk

2011-11-30

A.S.BOPANNA, VIKRAMAJIT SEN

body2011
Judgment :- Vikramajit Sen, Ag.C.J. In all these writ appeals, there are applications for condonation of delay of varying period of several months. We have noticed hereinafter that a Special Leave Petition had been preferred by the appellants against the Judgment delivered in State of Karnataka –vs- H. Peter (Writ Appeal No.291/2007) which came to be dismissed by their Lordships on the ground of delay. Although this very course commends adoption by us in these writ appeals, we think it proper not to charter that course for the reason that their Lordships have issued notice in some other Special Leave Petitions. Since the entire issue is before their Lordships, we think it expedient to condone the delay. Accordingly, the delay in filing the present appeals is condoned. 2. These appeals have been filed on behalf of the State of Karnataka through its Secretary, Department of Primary Education Bangalore, against the order of the learned Single Judge dated 26.07.2010 passed in Writ Petition Nos.21056-21058/2010. 3. The prayer in the Writ Petitions was for issuance of writ of mandamus, directing the State to compute the Petitioners/Teachers past service from the date of their initial appointment for the purpose of fixation of pay-scales, seniority and other consequential benefits. The State has adopted the position that these benefits would be made applicable only from the date of approval of the appointment of these Teachers. The learned Single Judge had allowed the Writ Petitions predicated on a decision rendered by Anand Byrareddy, J in B.C. Shantharaju –vs- The State of Karnataka in Writ Petition No.24910/2002 passed on 01.12.2006 and in State of Karnataka –vs- H. Peter in Writ Appeal No.291/2007 passed on 24.02.2009 by the Division Bench constituted of Shri. V.G. Sabhahit and Shri. A.S. Pachhapure JJ. Accordingly, a direction had been issued by the learned Single Judge to the State of Karnataka “to reckon the service of the Petitioners from the date of their initial entry into service until their appointments were approved and admitted to grant-in-aid, for computing their pensionary and other consequential benefits including pay fixation, legally entitled to.” 4. Accordingly, a direction had been issued by the learned Single Judge to the State of Karnataka “to reckon the service of the Petitioners from the date of their initial entry into service until their appointments were approved and admitted to grant-in-aid, for computing their pensionary and other consequential benefits including pay fixation, legally entitled to.” 4. Several appeals on this very question came up before the Division Bench of this Court (comprising V. Gopala Gowda and B.V. Nagarathna JJ) which, by Judgment dated 03.11.2009 reported as in Principal Secretary to the Government of Karnataka (Higher Education) –vs-Nage Gowda concluded that: “Writ appeals filed by the State have to be dismissed and the writ petitions have to be allowed. Rule is made absolute. The respective authorities are directed to consider the case of each of the Petitioners and pass orders accordingly in the context of the relevant rules applicable to them with regard to their retirement benefits including pension and gratuity along with interest at the rate of 6% per annum which shall be paid with effect from the date of filing of the writ petitions by each of these lecturers/teachers within a period of two months from the date of receipt of a certified copy of this order.” This determination of the legal position by at least two coordinate Division Bench is binding on us. In any event, we have perused the Judgment and are in respectful agreement with the dialectic as well as the decision therein. 5. Mr. B. Veerappa learned Additional Government Advocate has sought to rely on another Division Bench Judgment that was passed on 20.09.2011 in Writ Appeal No.476 of 2007. In that case, the learned Single Judge had noted the decision in State of Karnataka –vs- B.R. Chowdappa (W.P.No.1867/1995) and had granted an identical relief. The earlier decision in Principal Secretary to the Government of Karnataka (Higher Education) –vs-Naga Gowda dated 03.11.2009 was not brought to the notice of the Division Bench. This decision has been assailed in SLA (Civil) Nos.22176-22186/2010 but the impugned Judgment(s) has not been stayed. The later decision in W.A.No.476 of 2007, would therefore, have to be treated as per incuriam had it reached a conclusion contrary to that of an earlier Judgment. This decision has been assailed in SLA (Civil) Nos.22176-22186/2010 but the impugned Judgment(s) has not been stayed. The later decision in W.A.No.476 of 2007, would therefore, have to be treated as per incuriam had it reached a conclusion contrary to that of an earlier Judgment. However, on a careful reading of a later Judgment, all that was argued and therefore decided by the Division Bench was that since the petitioners therein had made a prayer only for disposal of their representations, that prayer alone had been granted in the first instance. This is all that the Division Bench ordered. Therefore, it cannot be contended that there is a conflict in the opinion rendered by coordinate Benches. 6. It is next contended by Mr. B. Veerappa, the learned Additional Government Advocate that so far as Writ Appeal No.450/2007 namely State of Karnataka –vs- V.T.S. Jayabal is concerned, it is pending adjudication in the Hon’ble Supreme Court in Special Leave Appeal (Civil) Nos.22176-22186/2010. Therefore, we should adjourn the proceedings sine die to await the final decision of their Lordships. We are not persuaded by this argument of learned Additional Government Advocate. Jayabal was one of nine other teachers with regard to whom favourable orders came to be passed by means of the common Judgment dated 03.11.2009. It is evident that what was troubling the appellants before us was the initiation of contempt proceedings for non-implementation of the Judgment rendered in their favour, inter alia in W.A.No.450/2007. The Hon’ble Supreme Court, at the hearing held on 16.08.2010 had passed the following Order: “Issue Notice. By way of ad-interim relief, it is directed that contempt proceedings initiated by the respondents shall remain stayed.” 7. We have attempted to ascertain from the learned Additional Government Advocate as to whether any further Orders have been passed by the Hon’ble Supreme Court in those Special Leave Appeals, but he is unable to furnish any further details in this regard. We think that it is just and necessary to underscore that their Lordships have not stayed the decision rendered by the Division Bench in W.A.No.450/2007. The mere filing of the Special Leave Petition especially since the endeavor of the appellants was to insulate themselves from the contempt proceedings, does not lead to the position that the Judgment of a coordinate Bench should hold the field. The mere filing of the Special Leave Petition especially since the endeavor of the appellants was to insulate themselves from the contempt proceedings, does not lead to the position that the Judgment of a coordinate Bench should hold the field. All the more so for the reason that we are also in respectful agreement with the reasoning in the said Judgment. It is also topical that the Special Leave Appeal (Civil) CC 7581/2011, assailing the Judgment dated 24.02.2009 passed in Writ Appeal No.291/2007, which was followed by a coordinate Bench in the impugned Judgment is to the same effect as the decision rendered in W.A.No.450/2007. The said SLA No.7581/2011 has been dismissed by the Hon’ble Supreme Court, albeit on the ground of limitation. W.A.450/2007 has therefore attained finality. 8. The most fundamental and important consideration is that there must be certainty, stability and uniformity of treatment in judicial decision. It will be evident from the information given above that owning to the conduct of the State, the entire situation is in a state of flux, leading to the lack of parity between the litigants who are identically placed. These litigants are teachers, who are society used to venerate, but who the Respondent Government has scant respect for. For example, H. Peter several others who were Respondents in SLA.No.7581/2011 have become entitled to computation and receipts of their benefits with effect from the date of their initial appointment, whereas, several others who are similarly placed would have to be told to wait for the same benefits. It will inevitably and inexorably lead to dissension, disaffection, dissatisfaction amongst litigants even though they are standing on the same platform and their rights are identical. 9. It appears to us that the most expedient fair and equitable course to be adopted is to dismiss all these Writ Appeals by following the Judgment of the Division Bench in H. Peter, dated 24.02.2009 in W.A. No.291/2007 and of yet another Division Bench by Judgment dated 03.11.2009 namely Nage Gowda, rendered by a coordinate Bench. It will then be open to the State Government to file appeals, if they are so advised and if they are maintainable in the context of prescription since a batch of Appeals had already been dismissed on the grounds of delay. It will then be open to the State Government to file appeals, if they are so advised and if they are maintainable in the context of prescription since a batch of Appeals had already been dismissed on the grounds of delay. The Hon’ble Supreme Court will then, by an another order, settle this question of law so that finality will be attained for all concerned. If we refrain from adopting this course, it seems to us that even though the decision of their Lordships will in actuality become final and conclusive, the appellants will persist in contending before the High Court that the said Judgment of their Lordships is not binding on the parties who were not before the Hon’ble Supreme Court, or that the factual matrix is different. Litigation abounds, and litigants suffer because the lis remains protracted. It is for these manifold and myriad reasons, that the present appeals are dismissed. We pass directions identical to those in the State of Karnataka – vs- H. Peter in which the Judgment has attained finality by the dismissal of the Special Leave Petitions. Writ Appeals filed by the State are dismissed. The Appellants are directed to calculate the Petitioner’s retirement benefits including pension and gratuity with effect from the date of their initial appointments together with interest at the rate of 6% per annum, which shall be paid with effect from the date of filing of the writ petitions by each of those lecturers/teachers. The payments must be made within a period of two months from the date of receipt of a certified copy of this order. There shall be no order as to costs.