MISS. SUFIYABANU MANNASAHEB v. STATE OF KARNATAKA

(BY SRI NANDISH PATIL, AND RAMACHANRA CV. BHAT, ADVOCATES) AND:

#1. STATE OF KARNATAKA, R/BY SECRETARY, MINORITY WELFARE DEPARTMENT, BENGALURU – 01.

#2. ADDITIONAL COMMISSIONER, GOVERNMENT OF KARNATAKA, EDUCATION DEPARTMENT IN RESPECT OF URDU AND OTHER MINORITY SCHOOLS, BENGALURU – 01.

#3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, RODDA ROAD, MALAMADDI, DHARWAD – 580 001.

#4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS, NEAR D. C. OFFICE, DHARWAD – 580 001. NARAYANKAR Location: High Court of Karnataka - 2 - NC: 2024:KHC-D:7096 WP No. 105869 of 2022

#5. BLOCK EDUCATION OFFICER, NEAR SHETTY STADIUM, DHARWAD – 580 001.

#6. ANJUMAN-E-ISLAM R/BY ITS CHAIRMAN, ANJUMAN ESTATE, OPP. OLD BUS STAND, DHARWAD – 580 001.

#7. HEAD MASTER, ANJUMAN HIGH SCHOOL, ANJUMAN ESTATE, OPP. OLD BUS STAND, DHARWAD – 580 001.

#8. MISS. MAHER NIGAR M. SHAIKH, ASSITANT TEACHER, ANJUMAN HIGH SCHOOL, ANJUMAN ESTATE, OPP. OLD BUS STAND, DHARWAD – 580 001.

#9. S. A. SARGIRO, COMMITTEE MEMBER, ANJUMAN - E - ISLAM ANJUMAN ESTATE, OPP. OLD BUS STAND, DHARWAD – 580 001. (BY SRI P.N.HATTI, HCGP FOR R1 TO R5; SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R6 AND R7; NOTICE TO R8 AND R9 ARE SERVED) …RESPONDENTS NO.3 RESPONDENT THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE WRIT IN THE NATURE OF CERTIORARI TO QUASHING THE IMPUGNED ORDER PASSED BY THE BEARING NO.G2/SHASHIA/MUSHIBA/M.M.SHE./61/2022-23 DATED 3.11.2022 VIDE ANNEXURE-C IN THE INTEREST OF JUSTICE AND EQUITY. ISSUE WRIT IN THE NATURE OF CERTIORARI TO QUASHING THE IMPUGNED ORDER PASSED BY THE RESPONDENT NO.3 DATED 23.11.2022 BEARINGNO.G2/SHASHIA/MUSHIBA/M.M.SHE./61/2022- 23 VIDE ANNEXURE-F, IN THE INTEREST OF JUSTICE AND EQUITY. DECLARE THE ORDER DATED 8.1.1997 BEARING NO.M.C.6/GHOSHANE/25.95-96 PASSED BY THE RESPONDENT NO.2 VIDE ANNEXURE-E AS NULL AND VOID AND UNENFORCEABLE. THAT - 3 - NC: 2024:KHC-D:7096 WP No. 105869 of 2022 ISSUE A DIRECTION TO CORRECT THE SENIORITY LIST VIDE ANNEXURE-G SHOWING THAT PETITIONER AS SENIOR TO RESPONDENT NO.9 INDICATING THAT PETITIONER AS THE HEAD MASTER, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

#1. A short question that arises for consideration in this petition is, Whether the Karnataka Education Institutions (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999 (For short the Rules, 1999) governing seniority are applicable to the facts of the instance case, if so, whether the order passed by the respondent No.3 is sustainable?

#2. Brief facts of the case are that the respondent No.7 Institution is a private aided institution. Petitioner was appointed as Assistant Teacher of English subject in respondent No.7 Institution on 26.07.1990, which post was approved by respondent No.3 on 04.03.1992, admitting the said post of Assistant Teacher in English to the grant-in-aid. The respondent No.8 was appointed on 17.07.1995 as Assistant Teacher of Urdu subject and her post was approved on 08.01.1997 by respondent No.3 and was admitted to grant-in-aid on the said - 4 - NC: 2024:KHC-D:7096 WP No. 105869 of 2022 date. Thus Petitioner claims to be senior in service to Respondent No.8, and to be eligible to the post of Headmaster. While considering the seniority between the petitioner and the respondent No.8, the respondent Authority has passed order dated 03.11.2022 as per Annexure-C recognizing Respondent No.8 to be the senior in service, which has lead to the present Writ Petition.

#3. Learned counsel for the petitioner taking through the contents of the impugned order at Annexure-C submits that said order has been passed without reference to the applicable rules namely Rule 3(1)(a) of the Rules, 1999 and Annexure-VI(ii) to the said Rules, which read as under “3. Qualification and conditions of service of employees.-(1) Subject to the other provisions in these rules: In recruitment, III/IV and V. (a) The categories of posts, the staffing pattern and the qualifications for recruitment) to posts in an Institution shall be as specified in respect of Annexures employees other than teachers, the prescribed qualifications Institutions shall be applicable for the corresponding category of employees Educational Institutions. The procedure for selection of candidates to posts identified for recruitment shall be [as specified in Annexure-I and the procedure for filling up of the post of Head Master and Head Mistress in High Schools shall be specified in Annexure-VI]:” the same as Government etc. - 5 - NC: 2024:KHC-D:7096 WP No. 105869 of 2022 Annexure-VI(ii): “(ii)Promotion to the post of Head Master or Head Mistress shall be made on the basis of seniority of a teacher, seniority being determined by counting the total number of years of continuous service from the date of entry into the cadre of Secondary School Assistant Grade-I or Grade-II as the case may be and by following Roster Rules, if they are applicable as per the orders issued by the Government in the matter of reservation from time to time. The service rendered in the cadre of Secondary School Assistant Grade-II (Untrained) may be protected for service benefits but shall not be counted for fixing the seniority; (iii)The eligible teacher must be a trained must be a trained Secondary School Assistant and must have put in not less than five years of approved teaching service in the Secondary School; (iv)If the management is running more than one school common seniority based on the date of approval of appointment of the teacher with aid shall be prepared and notified. If the date of approval of appointment of more than one teacher happens to be the same day, the seniority shall be fixed on the basis of date of birth and the person older in age shall become seniority. Such notified common seniority list shall be the basis for making promotion;”

#4. The contention of learned counsel for the petitioner is that ignoring applicability of the said rules, respondent No.2 Authority has passed the impugned order, which is per se illegal and unsustainable.

#5. Learned counsel appearing for the respondent Nos.6 and 7 submits that since the order is passed by the Authority - 6 - NC: 2024:KHC-D:7096 WP No. 105869 of 2022 prescribed under the Karnataka Education Act, 1983 there is an alternate remedy provided under Section 131 of the Karnataka Education Act, 1983 to file an appeal and the petitioner be relegated to avoid the said remedy.

#6. Heard and perused the records.

#7. It is settled proposition of law that if the order impugned is one with jurisdiction and authority relegating the parties to an alternate remedy in an exercise in futility. In the instance case, the order impugned at Annexure-C has been passed by the second respondent Authority on an erroneous premise that respondent No.7 Institution being a minority institution, the rules providing for determination of seniority are not applicable. The reasoning assigned in the impugned order is extracted hereunder (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:5)(cid:8)(cid:9)(cid:10) (cid:11)(cid:12)(cid:13)(cid:14)(cid:15)(cid:7)(cid:16)(cid:17)(cid:18)(cid:19)(cid:20)(cid:10) (cid:21)(cid:15)(cid:17)(cid:22)(cid:7)(cid:6)(cid:17)(cid:14)(cid:7)(cid:10) (cid:23)(cid:10) (cid:16)(cid:17)(cid:18)(cid:19)(cid:10) (cid:6)(cid:7)(cid:5)(cid:24)(cid:25)(cid:3)(cid:26)(cid:7)(cid:5)(cid:10) (cid:2)(cid:27)(cid:28)(cid:10) (cid:29)(cid:7)(cid:3)(cid:30)(cid:17)(cid:31) (cid:7)(cid:10) (cid:16)(cid:17)(cid:18)(cid:19)(cid:3)(cid:26)(cid:7)(cid:26)(cid:17)!(cid:22)(cid:7)(cid:5) (cid:7)"(cid:21)(cid:19)(cid:20)(cid:10)#(cid:21)(cid:7)$%(cid:3)(cid:21)(cid:7)(cid:10)(cid:6)(cid:7)(cid:5)(cid:5)(cid:30)(cid:19)&(cid:31)(cid:25)(cid:11)(cid:17)(cid:21)(cid:15)(cid:17)(cid:31)(cid:3)(cid:26)(cid:7)(cid:5)(cid:22)(cid:7)(cid:10)’(")(cid:19)(cid:10)*(cid:19)(cid:25)+(cid:7), (cid:19)(cid:10)-(cid:3)(cid:26)(cid:7)(cid:5)(cid:6)(cid:7)(cid:5))(cid:7).(cid:7)(cid:5)(cid:10) (cid:2)(cid:8)(cid:7)/(cid:3)(cid:26)(cid:7)(cid:5)(cid:6)(cid:17))(cid:7)(cid:5)(cid:6)(cid:7)01(cid:27)2(cid:20)3(cid:10) (cid:10)

#8. The impugned order is based on the aforesaid premise of non application of the rules. A perusal of the rules does not indicate exclusion of the institution like that of the petitioner from its application. Since, the order is one without reference to - 7 - NC: 2024:KHC-D:7096 WP No. 105869 of 2022 the law applicable in considered view of this court same is illegal, arbitrary and wholly without legal authority.

#9. In that view of the matter, relegating the petitioner to avail the alternate remedy of filing appeal would be redundant. Accordingly, the Writ Petition is allowed and the impugned order is set aside.

#10. Needless to state that the respondent Authority may re-work the seniority applying the relevant rules and provide opportunities to the parties concerned.

#11. In view of disposal of the Writ Petition, pending IAs. if any does not survive for consideration and the same are accordingly disposed of. VB/CT-ASC List No.: 1 Sl No.: 14 SD/- JUDGE