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2022 DIGILAW 161 (KAR)

R. B. Yashaswini v. State of Karnataka

2022-02-07

H.T.NARENDRA PRASAD

body2022
JUDGMENT 1. W.P.Nos.13087/2020 and 316/2021 are filed by the Management and W.P.Nos.11268/2021 and 11270/2021 are filed by the Teachers who were working in the said College. 2. The case of the petitioners in W.P.Nos. 11268/2021 and 11270/2021 is that they were working as Hindi Teachers in the said Management. They have been appointed pursuant to the Notification issued by the Management through paper publication, in the year 2006. Thereafter, the Management has issued a fresh notification on 23/12/2019 calling applications for filling up the very same posts which have been held by the petitioners. Being aggrieved by the same, petitioners have filed Appeal Nos. 1/2020 and 2/2020 before the Commissioner for Public Instructions under Sec. 130 of the Karnataka Education Act, 1983 (for short, 1983 Act'). During the pendency of the appeals, since the appellate authority has declined to grant interim order, the petitioners - Teachers have preferred writ petitions before this Court in W.P.Nos.5102/2020 and 5080/2020, respectively. This Court by order dtd. 16/7/2020 granted the interim order not to terminate the services of the petitioners. After service of notice, the Management has taken a specific contention regarding maintainability of the appeals before the authority under Sec. 130 of the 1983 Act. The appellate authority has held that the appeals are maintainable and passed the impugned order dtd. 31/8/2020. Being aggrieved by the same, both the Management as well as the Teachers have filed these writ petitions. 3. Sri R.P.Somashekaraiah, the learned counsel for the teachers has submitted that since the petitioners have been appointed pursuant to the notification issued on 4/6/2006 and their appointment has been made after following all procedure of law, their appointment has to be approved by the competent authority, but the Management has issued a fresh notification on 23/12/2019, calling for applications to fill up the very same posts which the petitioners - Teachers are holding. 4. He further submitted that when there is no vacant post, the notification issued by the Management is contrary to law. The appellate authority, without considering this aspect of the matter, has passed the impugned order directing the Management to proceed with the notification and the petitioners are also given opportunity to file their applications. Hence, he sought for allowing the writ petitions filed by the Teachers. 5. The appellate authority, without considering this aspect of the matter, has passed the impugned order directing the Management to proceed with the notification and the petitioners are also given opportunity to file their applications. Hence, he sought for allowing the writ petitions filed by the Teachers. 5. Sri M.P.Srikanth, the learned counsel for the petitioner - Management has submitted that the appeals filed by the Teachers before the appellate authority in Appeal Nos.1/2020 and 2/2020 praying to set aside the notification issued by the Management dtd. 23/12/2019 is not maintainable under Sec. 130 of the 1983 Act. The appellate authority, without considering the preliminary objection raised by the Management, has only held that since the notification is issued pursuant to the prior approval granted by the authority, the appeals are maintainable, even though there is no challenge in respect of the prior approval granted by the authority. 6. He further submitted that pursuant to the Notification dtd. 23/12/2019, the Management has appointed one teacher, but he has not been made as a party. Therefore, he submitted that the impugned order is unsustainable. Hence, he sought for allowing the writ petitions filed by the Management. 7. Smt.M.C.Nagashree, the learned AGA appearing for the State has submitted that since the petitioner - Teachers are already working from 2006, now that the notification has been issued after obtaining the approval from the competent authority, the appellate authority has directed the Management to proceed with the notification giving an opportunity to the petitioner - Teachers to file their applications pursuant to the notification, therefore, no right of the petitioner - Teachers or the Management has been effected. Hence, she defended the order passed by the appellate authority. 8. Heard the learned counsel for the parties and perused the writ papers. 9. After obtaining prior approval from the competent authority, the Management has issued the notification calling applications for filling up the posts of Hindi Teacher by notification dtd. 23/12/2019. The petitioner - Teachers who were already working, have filed appeals before the appellate authority under Sec. 130 of the 1983 Act. In the appeal Nos. 1/2020 and 2/2020, prayer sought for is to set aside the notification issued by the Management dtd. 23/12/2019. 23/12/2019. The petitioner - Teachers who were already working, have filed appeals before the appellate authority under Sec. 130 of the 1983 Act. In the appeal Nos. 1/2020 and 2/2020, prayer sought for is to set aside the notification issued by the Management dtd. 23/12/2019. The appellate authority, in the impugned order, has given a finding that since the notification has been issued pursuant to the prior approval granted by the authority, the appeals are maintainable under Sec. 130 of the 1983 Act. When there is no such prayer, whether the appeals filed by the petitioners are maintainable or not, has not been examined by the authority. During the pendency of the appeals the person who has been appointed pursuant to the said notification has also not been made as a party. Under these circumstances, the impugned order dtd. 31/8/2020 is passed contrary to Sec. 130 of the 1983 Act. The same is unsustainable and it is liable to be quashed. 10. Accordingly, the writ petitions are allowed. The impugned order dtd. 31/8/2020 passed by the second respondent is set aside with the following directions: The appellate authority is directed to first decide the maintainability of the Appeal Nos.1/2020 and 2/2020 filed under Sec. 130 of the 1983 Act. If the appellate authority has come to the conclusion that the appeal is maintainable, then direct the petitioner - Teachers to implead the candidate who has been appointed pursuant to the notification dtd. 23/12/2019. After impleading and after giving opportunity to all the parties, it shall pass an order in accordance with law. The appellate authority is directed to dispose of the appeals as expeditiously as possible, but not later than six months from the date of receipt of a certified copy of this order. If the petitioners are not already removed from service, the Management is directed to continue their services till the disposal of the appeals.