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2018 DIGILAW 350 (KAR)

Bashir Mulla S/o Imamsab Mulla v. State Of Karnataka, Represented By Its Principal Secretary

2018-03-09

K.N.PHANEENDRA

body2018
ORDER : 1. The petitioners have been appointed as Assistant Teachers by respondents 11 to 13 Management and they have been working in different private schools in respondents 14 to 21 which are admittedly aided institutions admitted to grant. 2. The petitioners appointments were approved by the Government on different dates, particularly, from 20.04.1997 as per Annexures B, B1 to B16. It is worth to refer the approval order of the posts of the petitioners. It is sufficient to quote one of the orders as per Annexure-B which shows specifically that, the posts of the petitioners were approved and admitted to the grant in aid subject to the allocation of the funds by the Zilla Panchayat and thereafter to release salary to them. 3. There is no dispute that from 22.03.1997 onwards the petitioners have received the salary and all the benefits arising out of the said approval order and consequent to the admitting the petitioners posts for grant in aid. It appears, the petitioners were granted with all the benefits from 28.06.2012 onwards as per Annexures F to F7 according to the orders passed by the Deputy Director of Public Instructions, Chikkodi, for all the petitioners. 4. The records also disclose that some of the petitioners who were working in Arabic schools they have made applications stating that though their posts have been admitted to grant in aid in the year 1997-98 the salaries and other emoluments were paid only upto 2003. But, thereafter from 2003-04 the salaries were not released to them. Therefore, they requested the respondents to release the salary from the year 2003-04 to 31.01.2006. In the context of considering the said representations by them the Government vide order dated 07.04.2007 in ED 8 MPS 2005 passed an order that, the petitioners posts were naturally developed in the institutions and considering the workload and responsibilities their posts were regularized and they are entitled for the salary from 24.01.2007. Therefore, ordered for release of salaries to those persons as per the notification. 5. Therefore, ordered for release of salaries to those persons as per the notification. 5. Here itself I would like to say that, nowhere in the said Government Order it is considered that, admission of posts to the grant in aid passed on 22.03.1997 by the Government in No. P3 Arabic:Nemaka:91:96-97, that appears to had not been taken note of and the said order of approval has not been set at rest in any manner in the notification dated 24.01.2007. Even otherwise, if the Government would like to modify the order passed on 22.03.1997 as per Annexure-P they should have give opportunity to the persons who are going to be affected by the order dated 24.01.2007. 6. It is also to be noted herein that the petitioners were all appointed against the permanent posts in the said institutions and there was no necessity of regularization as such because their posts have been considered as regular posts according to the notification dated 22.03.1997 as per Annexure-B. The Government must have confused with regard to their appointment, as could be evidenced from the notification dated 07.04.2007 as per Annexure-C that, the petitioners appointment were considered to be not regularized, therefore, the Government would like to regularize their posts from 07.04.2007, therefore the notification dated 07.04.2007 is quite contradictory to the notification already issued on 22.03.1997 as per Annexure-B. 7. Be that as it may, subsequently the petitioners have sought for extension of the time bound benefit (increment) on the basis of they completing 10/15 years in the same posts without any promotion. It appears, as per Annexures F to F7 the Government has again considered their request and in fact fixed their salaries by granting time bound scale increment to all of them as per Annexures F to F7. 8. It appears, as per Annexures F to F7 the Government has again considered their request and in fact fixed their salaries by granting time bound scale increment to all of them as per Annexures F to F7. 8. When the fact stands thus, in the year 2014 as per Annexure-G the respondent Government has taken the view that, in view of the Government Order dated 07.04.2007 the Government has considered the date of admitting the post of the petitioners to grant in aid as on 07.04.2007 as against 22.03.1997 and passed order to withdraw the time bound increment granted to them considering their services only from 07.04.2007 and not from 1997-98 as per Annexure-G. This document also do not disclose that before passing such order any opportunity was provided to the petitioners to have their say as to how they are entitled for the time bound increment, etc. 9. Consequent to Annexure-G the Government has taken drastic steps by issuing notices as per Annexures H, H1 and H2 notifying that the time bound increment granted to the petitioners shall be recovered, holding that the persons who have completed 10/15 years from the date of Government Order dated 07.04.2007, are also entitled for such benefit. 10. Even before issuing these notices, it appears, absolutely no opportunity was given to the petitioners to substantiate their claim as to how they are entitled for the time bound increment. The above said facts and circumstances clearly disclose that, the notification issued by the Government on 07.04.2007 as per Annexure-C and basing on that issuing another notification as per Annexure-G dated 04.06.2014 and consequently issuance of notices for recovery of the time bound increment granted to the petitioners are all prima facie against to the principles of natural justice. Throughout no opportunity has been granted to the petitioners to have their say as to how the order passed by the Government as per Annexure-B dated 22.03.1997 has to be interpreted and how they are entitled for the remedy as per the said notification. Therefore, in my opinion, the above said orders passed by the Government as per Annexures G, H, H1 and H2 deserve to be quashed with liberty to the Government to pass appropriate orders afresh after providing opportunity to the petitioner. 11. Therefore, in my opinion, the above said orders passed by the Government as per Annexures G, H, H1 and H2 deserve to be quashed with liberty to the Government to pass appropriate orders afresh after providing opportunity to the petitioner. 11. Though the learned counsel for the petitioners strenuously argued before this Court that there is absolutely no mistake or inaction or wrongful act committed by the petitioners, it is the Government which has fixed the salary, which has issued increment as per the appropriate orders passed by the competent authorities. When such being the case, if the mistake is committed by the Government, no recovery order could have been passed by the Government. In this regard, he also relied upon the decision of the apex Court reported in 2015 (4) SCC 334 State of Punjab & Ors. Vs. Rafiq & Ors. 12. I do not want to express any opinion with regard to this aspect because the Government is hereby directed to provide opportunity to the petitioners. Therefore, the petitioners are at liberty to urge all the grounds which are available to them before the respondents and thereafter the respondents have to consider the said grounds and pass appropriate orders. With these observations the following order is passed. ORDER Writ Petitions are allowed. Consequently, Annexures G, H, H1 and H2 are hereby quashed. However, the respondents 1 to 4 and 6 to 10 are at liberty to pass appropriate orders in accordance with law after providing opportunity to the petitioners to file their written statements and after providing opportunity fresh order has to be passed in accordance with law within reasonable time, not beyond six months from the date of receipt of a copy of this order. The petitioners are hereby directed to give their representations narrating all their grievances along with a copy of this order within one month from the date of receipt of a copy of this order so as to enable the respondents 1 to 4 and 6 to 10 to pass orders.