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2024 DIGILAW 243 (KAR)

H. M. S. Richard Kumar v. State of Karnataka

2024-03-22

SHIVASHANKAR AMARANNAVAR

body2024
JUDGMENT 1. The petitioner has filed the present writ petition seeking the following reliefs. i) "Issue a writ in the nature of certiorari thereby quashing the impugned endorsement, bearing no.Aa Nu1/Nya. Aa. Aaa/Richard Kumar/116/2019-20/959 dtd. 2/9/2020 issued by the Respondent no.4 herein (Annexure-E) to the Writ petition, in the interest of justice and equity. ii) Issue a writ in the nature of certiorari thereby quashing the impugned endorsement bearing no.Aa Au1/Nya.Aa.Paa/Richard Kumar/116/ 2019-20/2220 dtd. 31/3/2022 issued by the Respondent no.4 herein (Annexure-L1) to the Writ petition, in the interest of justice and equity. iii) Issue a writ in the nature of certiorari thereby quashing the impugned endorsement bearing no.Ji9/Sha Shi Aa/Yes.Di.Gaa./Ne.Anu/ 26/ 2021-22/188 dtd. 19/4/2022 issued by the Respondent no.3 herein (Annexure-M) to the Writ petition, in the interest of justice and equity. iv) Issue a Writ of mandamus or any other appropriate writ, order or directing the Respondent no.2 and 3 to consider the representation dtd. 16/9/2021 and representation dtd. 22/2/2022 respectively (Annexure-J and K), in the interests of justice and equity. v) Issue any other appropriate writ, order or direction as deemed fit to grant in the facts and circumstances of this case in the ends of justice." 2. The petitioner earlier had filed W.P.No.64565/2010 challenging the order dtd. 31/3/2010 passed by the District Judge and Educational Appeal Tribunal, Uttar Kannada, Karwar in EAT No.2/2002. The said writ petition came to be allowed by order dtd. 27/9/2019 and set aside the impugned order and also held that petitioner is entitled for reinstatement with 50% back wages along with other consequential service benefits. Copy of said order is at Annexure-'A'. 3. The respondent Nos.6 and 7 filed Writ Appeal No.100541/2019(S-DIS) challenging the order passed in writ petition No.64565/2010 dtd. 27/9/2019. Thereafter, the petitioner and respondent Nos.6 and 7 have got compromised and filed joint memo. The said joint memo vide Annexure-'B' came to be accepted by the Division Bench of this court vide Annexure-'D' and writ appeal came to be disposed of in terms of the said joint memo. The petitioner came to be reinstated by respondent Nos.6 and 7 on 3/3/2020. Thereafter, the petitioner has been paid his salary till his superannuation on 31/1/2021. 4. The respondent basing on the orders passed in the writ petition and writ appeal, passed order dtd. 2/9/2020 vide Annexure-'E' where under his pay was fixed. The petitioner came to be reinstated by respondent Nos.6 and 7 on 3/3/2020. Thereafter, the petitioner has been paid his salary till his superannuation on 31/1/2021. 4. The respondent basing on the orders passed in the writ petition and writ appeal, passed order dtd. 2/9/2020 vide Annexure-'E' where under his pay was fixed. The petitioner found the pay fixed by the respondents is not proper, made a representation dtd. 16/9/2021 vide Annexure-J and representation dtd. 22/2/2022 vide Annexure-'K'. The respondents refused to give consequential benefits to the petitioner and issued endorsement dtd. 13/4/2022 vide Annexure-'L' and endorsement dtd. 31/3/2022 vide Annexure-'L1'. Thereafter, respondent No.3 issued endorsement justifying the order of respondent No.4 issued endorsement dtd. 19/4/2022 vide Annexure-'M'. The respondent No.2 sent communication to the respondent No.1 stating that steps were already taken as per endorsement dtd. 19/4/2022 and said communication dtd. 7/7/2022 vide Annexure-'N'. The petitioner being aggrieved by the illegal and arbitrary acts of respondent Nos.1 to 5 has filed this writ petition. 5. The learned counsel for the petitioner would contend that as per order passed by this Court in WP No.64565/2010, the petitioner came to be reinstated in service with all consequential service benefits. Therefore, the petitioner is entitled for his service benefits and fixation of pension taking into consideration his entire service of nearly 36 years. He submits that petitioner joined the service on 15/12/1984 and retired on 31/1/2021. 6. The petitioner gave up his claim of 50% of back wages and compromised the matter with respondent Nos.6 and 7 who had preferred writ appeal No.100541/2019 by entering into compromise with them. The said compromise recorded in writ appeal does not come in the way of the petitioner making claim of his service benefits and pension taking into consideration years of service rendered by him. 7. He submits that the reinstatement amounts to return to its previous position or status. He submits that the petitioner is entitled for fixation of pension and service benefits based on the increments, time bound increments and annual increments as if he was continuously in service from the date of appointment till the date of superannuation. 8. He contends that the endorsement issued by respondent No.4 Annexure-'E' and Annexure-'L1' and endorsement issued by respondent No.3 vide Annexure-'M' are not based on the entire service of the petitioner and therefore they requires to be quashed. 9. 8. He contends that the endorsement issued by respondent No.4 Annexure-'E' and Annexure-'L1' and endorsement issued by respondent No.3 vide Annexure-'M' are not based on the entire service of the petitioner and therefore they requires to be quashed. 9. The learned HCGP would contend that as per Rule 22 of Karnataka Educational Institutions (Recruitment and terms and conditions of service of employees in private primary and Secondary educational institutions) Rules, 1999 provides that the Government shall not be liable to pay salary arrears and such arrears of salary will be paid by management only in case dismissal or removal or compulsory retirement etc were set aside by the Court or Appellate Authority. She contends that as the petitioner did not work from the date of dismissal till the date of his reinstatement, he is not entitled for service benefits till that period. She further submits that the dismissal of the petitioner was found to be Non-est for non-compliance of 2nd proviso to Rule 14 of the Rules, 1999. The 2nd proviso provides that every order of the private management receiving aid from Government keeping its employee under suspension from service etc., shall be confirmed by the competent authority who has provided the appointment. She contends that non-compliance of said 2nd proviso, this Court has held that dismissal of the petitioner is Non-est and therefore Government is not liable to pay any monitory benefits as it is lapse on the part of the Management i.e. respondent Nos.6 and 7. 10. Learned HCGP has reiterated the contentions taken up by her in her statement of objections. 11. Learned counsel for respondent Nos.6 and 7 would contend that as per order passed in the writ petition, the petitioner came to be reinstated by the respondent Nos.6 and 7 and paid his salary till superannuation. He further submits that in view of the compromise recorded in the writ petition, the petitioner did not claim 50% of the back wages. 12. Having heard the learned counsel for the parties, this court has perused the record. 13. The petitioner was appointed as Assistant Teacher on 15/12/1984. The petitioner attained superannuation on 31/1/2021. He further submits that in view of the compromise recorded in the writ petition, the petitioner did not claim 50% of the back wages. 12. Having heard the learned counsel for the parties, this court has perused the record. 13. The petitioner was appointed as Assistant Teacher on 15/12/1984. The petitioner attained superannuation on 31/1/2021. In between, the petitioner who came to be terminated by respondent Nos.6 and 7, in challenging by the petitioner, it came to be found Non-est by the Co-ordinate Bench of this Court which ordered for reinstatement with 50% back wages along with other consequential service benefits. The petitioner gave up his claim of 50% of back wages by entering into compromise with respondent Nos.6 and 7 which came to be recorded in Writ Appeal No.100541/2019. The petitioner who has been dismissed from service by order dtd. 25/7/2002, has been reinstated on 3/3/2020 as per order passed by this court. As the order passed by this Court reinstating with all consequential service benefits will entitle the petitioner for service benefits on his superannuation and fixation of pension taking into consideration as no break in service, yearly increments, time bound increments, revision in pay etc. The pay fixed as per order dtd. 2/9/2020 vide Annexure-'E' by respondent No.4, by not taking into consideration the yearly increments, time bound increment, pay revision etc. Even the endorsement issued by the respondent No.4 dtd. 31/3/2022 vide Annexure-L1 and endorsement dtd. 19/4/2002 vide Annexure-'M' issued by the respondent No.3 are not sustainable and requires to be quashed. 14. The petitioner has made representation dtd. 16/9/2021 vide Annexure-'J' and representation dtd. 22/2/2022 vide Annexure-'K' requesting the respondent Nos.2 and 3 respectively to extend all consequential service benefits and also extend pension benefits and time bound increments etc., are requires to be considered by the respondent Nos.2 and 3. 15. For the aforesaid reasons, the following: ORDER i) The petition is allowed. ii) The endorsement dtd. 2/9/2020 issued by the respondent No.4 vide Annexure-'E'; endorsement dtd. 31/3/2022 issued by respondent No.4 vide Annexure-'L1' and endorsement dtd. 19/4/2022 vide Annexure-'M' issued by respondent No.3 are quashed. iii) The respondent No.2 is directed to consider the representation of the petitioner dtd. 16/9/2021(Annexure-'J') and respondent No.3 is directed to consider representation of the petitioner dtd. 22/2/2022(Annexure-'K') and fix his pay, pension service benefits taking into consideration annual increments, time bound increments, revision of pay etc. 19/4/2022 vide Annexure-'M' issued by respondent No.3 are quashed. iii) The respondent No.2 is directed to consider the representation of the petitioner dtd. 16/9/2021(Annexure-'J') and respondent No.3 is directed to consider representation of the petitioner dtd. 22/2/2022(Annexure-'K') and fix his pay, pension service benefits taking into consideration annual increments, time bound increments, revision of pay etc. within a period of four months. iv) Respondent Nos.6 and 7 are directed to send the details of pay, annual increments, time bound increments for 10, 15, 20, 25, and 30 years, revision of pay etc., to respondent Nos.2 and 3 within a period of one month.