MRS. BHARATHI v. THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KARNATAKA, DEPARTMENT OF EDUCATION

The petitioner - Smt. Bharathi has filed the present petition seeking for setting aside of the order passed by respondent No.1 - Principal Secretary, Government of Karnataka, Department of Education, in exercise of the revision appeal which order is produced at Annexure-'A'. By virtue of the order at Annexure-'A', the revision petition filed under Section 131 of the Karnataka Education Act, 1983 (for short 'the Act') by respondent No.3 - Sri. Damodara N., was allowed by setting aside the order passed on 28.11.2017 in Revision Appeal No.110/2014.

By virtue of the order passed at Annexure-'E', the Revision Appeal No.110/2014 was filed by Smt. Bharathi the petitioner, herein assailing the inclusion of respondent No.3 within the ambit of grant-in-aid in place of Smt. Bharathi. In fact the petitioner had filed W.P.No.36864/2009 which came to be disposed off on

27.07.2012 and the said writ petition came to be disposed - 4 - NC: 2024:KHC:44234 WP No. 18560 of 2018 off with the observations as made at paragraph No.2 which reads as follows: "2. There can be no doubt that the petitioner has an alternative and efficacious remedy of filing an appeal under Section 130 of the Karnataka Education Act, 1983, for short the 'Act'. In that view of the matter, State of Karnataka by its Secretary, Primary and Secondary Education Department, Bangalore, being the Appellate Authority, is directed to treat this petition as an appeal under Section 130 of the Act and pass orders in accordance extending reasonable opportunity of hearing to the parties. It is needless to state that if the 6th respondent's appointment as a First Division Clerk, in another institution managed by the 3rd respondent - Sangha is approved and admitted to grant-in-aid, in the absence of an acceptable explanation, as to how he was appointed by the said Sangha as a lecturer in Political Science in the 5th respondent-college, action in accordance with law deserves to be taken including one of criminal prosecution if criminality is found. The petition is accordingly disposed of. " - 5 - NC: 2024:KHC:44234 WP No. 18560 of 2018

Consequent to such direction, the revision appeal was taken up. In the revision appeal, the facts that were laid out was that respondent No.3 Sri. Damodara N., was stated to have been working simultaneously in two institutions namely as a First Division Clerk in Kurunji Venkataraman Gowda (KVG) Industrial Training Institute as well as was working in the Group Institution namely Sri Sharadha Pre-University College for Women as a Political Science lecturer. It was contended that such dual work in two institutions was impermissible.

The further contention raised was that the petitioner herein was eligible and at the prejudice of the petitioner, respondent No.3 was working. It was contended that the petitioner was eligible under the roster system. Two points for consideration were framed in the revision appeal proceedings, which are as follows: POINT NO.1:- Whether respondent No.3 - Sri. Damodara N., was working in KVG Industrial Training Institute as a First Division Clerk prior to his - 6 - NC: 2024:KHC:44234 WP No. 18560 of 2018 appointment as Political Science lecturer in Sri Sharadha Women's Pre-University College, Sullia? POINT NO.2:- Whether Smt. Bharathi, the petitioner herein could have been appointed to the grant-in-aid post, now occupied by Sri. Damodara N. ?

Insofar as point No.1 is concerned, Revisional Appellate Authority had recorded a finding that respondent No.3 was working simultaneously in both the institutions and accordingly, the grant-in-aid with respect to the post to which he is appointed had to be cancelled and proceedings were to be initiated on the criminal side against respondent No.3.

Insofar as point No.2 is concerned, authority has answered in the negative, while observing that Sri. R. Ganesh was appointed as English Professor and Sri. Balakrishna Naik has been appointed as Sociology Professor since 29.12.2011 itself and accordingly, there was no post vacant insofar as the claim of the petitioner for the post of Sociology Professor. - 7 - NC: 2024:KHC:44234 WP No. 18560 of 2018

It is further observed that the petitioner has not challenged the appointment of Sri. R. Ganesh or Sri. Balakrishna Naik. It must be noticed that as against such order insofar as the adverse finding on point No.1, respondent No.3 had approached the Revisional Appellate Authority under Section 131 of the Act before the Principal Secretary to the Government. At this point, it must be noticed that the petitioner had not challenged the finding on point No.2.

Insofar as revision proceedings R.P.No.113/2017, the same has culminated in an order being passed, whereby the revision under Section 131 of the Act was wrongly noticed as proceedings under Section 132 of the Act in the impugned order at Annexure-'A' came to be allowed and finding at point No.1 in the proceedings of Revision Appeal No.110/2014 came to be set aside. The authority concerned has set aside the said finding while observing that there was no material to show - 8 - NC: 2024:KHC:44234 WP No. 18560 of 2018 that respondent No.3 was working in both the institutions simultaneously.

Insofar as the observations made at paragraph Nos.6 and 7 is concerned, it must be noticed that the reasoning of the impugned order is found in paragraph Nos.6 and 7, whereby the authority has observed that the petitioner's selection was rejected by the Government itself and not by the management in light of the roster system. It was further noticed that the Government had directed to appoint SC and ST lecturers for the subject in English and Sociology and accordingly, the proposal of the petitioner herein was dropped by the Government.

It is further noticed that since the proposal of the petitioner herein was rejected as per the reservation policy and taking note that Sri. Balakrishna Naik was appointed as Sociology lecturer and Sri. R. Ganesh was appointed as English lecturer, regards which no challenge was made and also on the ground that the appointment of - 9 - NC: 2024:KHC:44234 WP No. 18560 of 2018 Sri. Damodara N., was as Political Science lecturer, while the claim of the petitioner was for Sociology lecturer. In light of the same, the claim of the petitioner was rightly rejected by the authority.

It was further noticed that the finding of respondent No.3 that he was working in other institutions could not have been accepted as he had resigned in the earlier institution on 15.01.2009 and was only subsequently appointed to the post which he was currently occupying. Such of the proceedings have been challenged in the present writ petition.

The claim of the learned counsel for the petitioner is that the Revision Petition No.113/2017 was disposed off on 12.03.2018 and though the petitioner herein was arrayed as respondent No.6 in the Revision Petition No.113/2017, notice itself was served on the petitioner herein on 08.03.2018 and accordingly, the order passed was in violation of principles of natural justice as - 10 - NC: 2024:KHC:44234 WP No. 18560 of 2018 the petitioner herein did not have sufficient opportunity to put forth her case in the proceedings.

Learned counsel for the petitioner submits as regards the contention that the adverse finding in point No.2 made by the Revision Appellate Authority in terms of the order at Annexure-'E' was not challenged. It was submitted that if the petitioner herein was notified, necessary counter claim would have been filed and reliance has been placed on the order passed in People's Education Society and Trust, Belgaum v. Secretary to the Government of Karnataka and others in W.P.No.68093/2011.

That apart, it is submitted that the procedure required to be followed by the authority while passing an order in appeal or revision which would include framing points for consideration and following the procedure as contemplated under Code of Civil Procedure (CPC), has not been followed. - 11 - NC: 2024:KHC:44234 WP No. 18560 of 2018

Learned counsel for respondent No.3 on the other hand would contend that in terms of the proceedings at Annexure-'E', the finding at point No.2 not having been challenged and the order at Annexure-'E' insofar as the adverse finding at point No.1 was challenged by respondent No.3 before the Revisional Authority. It is submitted that accordingly what was there before the Revisional Authority was only the challenge as to the finding on point No.1 and nothing more and accordingly, the order passed by the Revisional Authority could not be assailed.

Heard both sides.

At the outset, it must be noticed that as narrated facts before the proceedings at Annexure-'E' amongst the two points for consideration that were framed, point No.2 for consideration related to whether the claim of the petitioner could be considered as regards the post of grant-in-aid. That issue was answered - 12 - NC: 2024:KHC:44234 WP No. 18560 of 2018 in the negative and the same has not been challenged. The learned counsel for the petitioner has contended that in the proceedings under Section 131 of the Act, if he was notified he could have raised a counter claim. However, what must be noticed is that the revision filed under Section 131 of the Act was by respondent No.3 only on the adverse finding at point No.1. If that were to be so, the question of the Revisional Authority entering into the portion of order not relating to respondent No.3 but the petitioner, would not arise. Section 131 of the Act reads as follows:

131. Revision by the State Government.- (1) The State Government may, either suo motu or on an application from any person interested, call for and examine the record of an educational institution or of any authority, officer or person respect of any administrative or quasi-judicial decision or order, not being a proceeding in respect of which a reference to an arbitrator or an appeal to the High Court is provided, to satisfy themselves as to the regularity, correctness, legality or propriety of any decision or order - 13 - NC: 2024:KHC:44234 WP No. 18560 of 2018 passed therein, and if, in any case it appears the State Government such decision or order should be modified, annulled or reversed or remitted reconsideration, they may pass accordingly: Provided that the State Government shall not pass any order adversely affecting any party unless such party has had an opportunity of making a representation. (2)The State Government may stay the execution of any such decision or order pending the exercise of powers under sub- section (1) in respect thereof. (3)Every application preferred under sub- section (1) shall be made within such time and in such manner and accompanied by such fees as may be prescribed. "

It is clear from the scope of Section 131 that the revision that is to be entertained by the State Government is either suo-moto or on an application from any interested person. Once such revision is entertained at the instance of the person interested, needless to state it is only that portion of the order that could be taken note - 14 - NC: 2024:KHC:44234 WP No. 18560 of 2018 by the State Government in the revision. This would be in contradistinction to a suo-moto revision to be entertained by the Government, wherein the entirety of the order may still be open for reconsideration.

If that were to be so, we find that the Revisional Authority has rightly passed the order which cannot be open for questioning. Insofar as the findings on merits also, it must be noticed that the Revisional Authority has clearly noticed at paragraph No.6 of the impugned order that the post for which respondent No.3 had applied and was working lecturer of Political Science and the claim of the petitioner was as regards the post of Sociology. It was further held that the post of English lecturer and Sociology lecturer was already occupied by Sri. R. Ganesh and Sri. Balakrishna Naik respectively and such order has not been challenged.

Insofar as the finding as regards respondent No.3 is concerned, a clear finding is recorded that the - 15 - NC: 2024:KHC:44234 WP No. 18560 of 2018 working of Sri. Damodara N., in Sri Sharada Pre-University College was only after he had resigned the earlier institution on 15.01.2009. Accordingly, we find that there is no reason to interfere with the order and the petition is rejected.

Insofar as the contention that the procedure as contemplated by the Coordinate Bench of this Court has not been followed as was laid out in People's Education Society and Trust, Belgaum case (supra), it must be noticed that in the present case, though the points for consideration has not been framed, the impugned order reflects to identification of issue and the reasoning concerned.

Further we find that in light of the absence of power of the original authority to consider the case of the petitioner, the petitioner cannot have any grievance to the order at Annexure-'A' when the proceedings at Annexure- 'A' was limited only to the grievance of respondent No.3 - 16 - NC: 2024:KHC:44234 WP No. 18560 of 2018 and not as regards point No.2 dealt against the petitioner. Accordingly, petition is rejected. Sd/- (S SUNIL DUTT YADAV) JUDGE MCR