SR JAGADGURU ANNADANESHWARA vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
952-DB
of 2023
of 2022
- 1 -
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
WAD
IN THE HIGH C
COURT OF KARNATAKA AT DHARW
TH
THE 24 DAY OF SEPTEMBER, 202
26
DATED THIS
PRESENT
A
THE HON'BL
LE MR. JUSTICE M.NAGAPRASANNA
AND
I
THE HON'B
BLE MRS JUSTICE HEMA KULKARNI
WRIT APP
PEAL NO.100127 OF 2023 (S-PRO)
C/W
WRIT
APPEAL NO. 100252 OF 2022
IN WA No. 10012
BETWEEN:
V. C. ALLIPUR S/O.
AGE: 62 YEARS, AS
SHRI JAGADGURU A
HIGH SCHOOL, GU
DIST: KOPPAL – 58
27/2023
CHANNAMALLAPPA,
SSISTANT TEACHER,
ANNADANESHWARA
NDBALA,
83 231.
…APP
DESAI, ADVOCATE)
ELLANT
(BY SRI. SUNIL S.
AND:
1. THE STATE OF
R/BY ITS SECR
PRIMARY AND
DEPARTMENT,
BENGALURU –
2. THE DIRECTOR
PRE-UNIVERSI
BENGALURU –
3. THE DEPUTY D
PRE-UNIVERSI
GADAG – 5811
Digitally signed
by RAKESH S
HARIHAR
Location: High
Court of
Karnataka,
Dharwad Bench
KARNATAKA,
RETARY,
SECONDARY EDUCATION
560001.
R OF
ITY EDUCATION,
560001.
DIRECTOR OF
ITY EDUCATION,
117.
- 2 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
4. THE JOINT SEC
TO GOVERNME
PRIMARY AND
EDUCATION DE
M.S. BUILDING
BENGALURU –
5. SHRI. JAGADG
VIDYA SAMITH
R/BY ITS PRES
SHRI. JAGADG
MAHASWAMIG
AGED ABOUT 6
OCC: PRESIDE
ANNADANESHW
MUNDARGI – 5
CRETARY
ENT AND APPELLATE AUTHORITY,
SECONDARY EDUCATION,
EPARTMENT,
G,
560001.
GURU ANNADANESHWARA
HI, MUNDARGI, DIST: GADAG,
SIDENT,
GURU ANNADANESHWARA
ALU,
67 YEARS,
ENT OF JAGADGURU
WARA VIDYA SAMITHI,
582 118, DIST: GADAG.
…RESPON
. HIREMATH, HCGP FOR R1 TO R4;
NDENTS
(BY SMT. GIRIJA S.
SRI. VINAY S.
THIS WRIT A
COURT ACT, 1976,
AND; SET ASIDE T
MADE IN W.P. NO
AND CONSEQUENT
AS RELATING TO
THE EXTENT OF 5
RESPONDENT TO
ATTACHED TO THE
25.07.2005 TILL
JUSTICE AND EQUI
IN WA NO. 10025
BETWEEN:
SRI. JAGADGURU A
VIDYA SAMITHI, MU
DISTRICT: GADAG,
R/BY ITS PRESIDEN
SHRI. JAGADGURU
KOUJALAGI, ADVOCATE FOR R5)
PPEAL IS FILED U/S. 4 OF KARNATAKA
A HIGH
PRAYING TO CALL FOR RELEVANT RE
THE ORDER OF THE LEARNED SINGLE
O. 62953/2012 (S-PRO) DATED 12-0
CORDS
JUDGE
1-2022
NSOFAR
TLY DISMISS THE WRIT PETITION. IN
RESTRICTION OF ARREARS OF SALA
50% AND CONSEQUENTLY DIRECT T
ARY TO
TH
THE 5
RELEASE ALL THE MONETARY BE
E POST OF LECTURER IN ECONOMICS
NEFITS
S FROM
EST OF
HIS RETIREMENT IN THE INTERE
ITY AND ETC.
52/2022
ANNADANESHWARA
UNDARGI,
,
NT,
ANNADANISHWAR
- 3 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
MAHASWAMIGALU,
AGED ABOUT 67 YE
JAGADGURU ANNA
MUNDARGI – 582 1
EARS, OCC: PRESIDENT OF
DANESHWARA VIDYA SAMITHI,
118.
...APPELLA
KOUJALAGI, ADVOCATE)
ANT
(BY SRI. VINAY S.
AND:
1. THE STATE OF
R/BY ITS SECR
PRIMARY AND
DEPARTMENT,
2. THE DIRECTOR
PRE-UNIVERSI
BENGALURU –
3. THE DEPUTY D
PRE-UNIVERSI
GADAG – 581
4. THE JOINT SEC
AND APPELLAT
PRIMARY AND
EDUCATION DE
M.S. BUILDING
BENGALURU –
5. V. C. ALLIPUR
ASSISTANT TE
SHRI. JAGADG
HIGH SCHOOL
DISTRICT: KOP
KARNATAKA,
RETARY,
SECONDARY EDUCATION,
BENGALURU – 560 001.
R OF
ITY EDUCATION,
560 001.
DIRECTOR OF
ITY EDUCATION,
117.
CRETARY TO GOVERNMENT
TE AUTHORITY,
SECONDARY EDUCATION,
EPARTMENT,
G,
560 001.
S/O. CHANNAMALLAPPA,
EACHER,
GURU ANNADANESHWARA
L, GUNDBALA,
PPAL – 583 231.
...RESPONDEN
NTS
(BY SRI. SINIL S. D
SMT. GIRIJA S.
DESAI,ADVOCATE FOR C/R5;
. HIREMATH, HCGP FOR R1 TO R4)
- 4 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
THIS WRIT A
HIGH COURT ACT
ALLOW THE APPEA
BY THE LEARNED
PASSED IN WRIT
INTEREST OF JUST
THESEWRIT
HEARING THIS DAY
UNDER:
CORAM: H
APPEAL IS FILED U/S.4 OF KARNATA
AKA
RDS
T, PRAYING TO CALL FOR RECOR
AL AND SET ASIDE THE ORDER PASS
SED
D SINGLE JUDGE DATED 12/1/20
022
THE
T PETITION NO.62953/2013 IN T
ICE AND EQUITY.
APPEALS, COMING ON FOR PRELIM
Y, JUDGMENT WAS DELIVERED THER
MINARY
REIN AS
HON'BLE MR. JUSTICE M.NAGAPRASAN
NNA
AND
HON'BLE MRS JUSTICE HEMA KULKAR
RNI
ORAL JUDGMENT
LE MR. JUSTICE M.NAGAPRASANNA
(PER: HON'BL
A )
These appeal
ls are preferred calling in question the
e order
of the learned Sing
gle Judge dated 12.01.2022 passed
in Writ
Petition No.62953/
/2012, whereby the learned Single
Judge
allows the writ peti
tion and directs the Management to p
promote
the respondent No.
.5 to the post of Lecturer in Economics
s in the
light of the order
dated 25.07.2005 with continuity of
service
and all monetary b
benefits but restricts the arrears of sa
alary to
be paid to 50% of t
the entitlement.
2. The Ma
nagement prefers Writ Appeal No.100
0252 of
202, while employe
ee – teacher prefers Writ Appeal No.
100127
- 5 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
of 2023. The Mana
agement challenges the order of the
learned
Single Judge. The
e employee challenges that portion
of the
order which restrict
ts the claim to 50% of the back wages
s.
3. Heard
the learned counsel Sri. Sunil S.
Desai,
learned counsel Sr
ri. Vinay S. Koujalagi and the learned
d HCGP
Smt. Girija S. Hirem
math.
4. Facts in
n brief germane are as follows:
4.1. The cla
aim of the respondent No.5 datesb
back to
06.06.2001. The re
espondent No.5 being eligible for pro
omotion
to the post of Lect
urer in Economics, submits a represe
entation
to the appellant req
questing consideration of his case on a
account
of a post falling
vacant. During the dependency
of the
representation, it t
ranspires that the appellant informs t
that the
post of Lecturer i
in Economics is to be filled up aft
ter the
retirement of one S
Sri. B.S. Honnur, who was holding th
he post.
The communication
n comes just before the retirement
of Sri.
B.S. Honnur. On 2
2.02.2002, the respondent No.3 infor
rms the
Management, to fill
l up the post of Lecturer in Economics
s before
the retirement of S
Sri. B.S. Honnur. Sri. B.S. Honnur ret
tires on
attaining the age of
f superannuation on 28.02.2002.
- 6 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
4.2. Then th
he respondent No.5 submits a represe
entation
seeking his promot
tion to the post of Lecturer in Economi
cs. The
Administrator is ap
ppointed to theInstitutionin the interre
egnum,
who is also reques
sted to fill up the post. The responden
nt No.3
then directed the a
appellant – Institution to take all nec
cessary
action to fill up t
he post of Lecturer in Economics t
through
promotion by comm
munication dated 15.06.2002. The Ins
stitution
informs the respon
dent No.5 that his case for promotion
n would
not be considered,
as there were vacancies in the High
School
section itself and t
herefore, turns down the said claim a
and the
Institution then is
ssues a notification calling for appli
ications
from eligible perso
ons to the post of Lecturer in Econ
nomics,
treating the post a
as a backlog post. This is called in q
uestion
before this Court i
n Writ Petition No.32444 of 2002. T
he said
petition comes to
be disposed on 07.12.2004 directi
ing the
respondent No.5 t
to approach the Government under
Section
131 of the Karnat
taka Education Act, 1983. The resp
pondent
No.5 then prefers
an appeal in Appeal No.61 of 2005
5 under
Section 131 of the
Karnataka Education Act.
- 7 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
4.3. The pet
tition is disposed holding that the resp
pondent
No.5 was the only
y eligible person for the post of As
ssistant
Teacher in the field
d of economics and directs the appe
llant to
take action to pro
omote him as lecturer in economic
cs with
immediate effect. A
Aggrieved by the order in Writ Appea
l No.61
of 2005, the appell
lant prefers an appeal against the sai
d order
before the State G
Government. The Secretary of the Ins
stitution
then places a res
solution in the committee on reco
rd and
requests withdrawa
al of the Appeal No.38 of 2005 whi
ich had
challenged the or
rder in Appeal No.61 of 2005. Th
en the
appellant – Institut
tion being aggrieved by the order per
rmitting
withdrawal of the
revision, prefers Writ Petition No.4
4731 of
2006.
4.4. The sa
aid Writ Petition comes to be d
isposed
reserving liberty to
o the institution to file appropriate app
plication
before the Author
ity. Thus travels the chequered his
tory of
litigation after litiga
ation either before the State Governm
ment or
before this Court
at relevant points in time. Finally
Appeal
No.38 of 2005 w
which was preferred by the Manag
gement
challenging the ord
der passed in Appeal No.61 of 2005 co
omes to
- 8 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
be dismissed. The
e dismissal of the said appeal driv
ves the
management to th
is Court in Writ Petition No.62953 of
f 2012.
The learned Single
e Judge, by the order impugned, reje
ects the
petition filed by
the Management – Institutionand
directs
promotion to be gra
anted to the respondent No.5 in terms
s of the
earlier order in App
peal in Appeal No.61 of 2005. It is th
his that
has driven the m
management to this Court in the
subject
petition.
5. The lea
rned counsel appearing for the Manag
gement,
would vehemently
contend that anticipating vacancy that
t would
arise on retireme
ent of one Sri. Sri. B.S. Honnu
ur, the
representation was
s directed to be considered. The post
t was a
backlog post. There
efore, no promotion could have been g
granted
to the petitioner to
o the respondent No.5. Notwithstand
ing the
same, the Governm
ment, the Appellate Authority before
e whom
an appeal in App
eal No.61 of 2005 had been prefe
erred is
allowed directing
grant of promotion. The said or
rder is
erroneous in the li
ght of the clear vacancy not existing
g in the
post of Lecturer in
Economics. He would submit that the
appeal
- 9 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
be allowed and the
e order of the learned Single Judge be
e set at
not.
6. The ap
ppellant in the companion petitio
on has
restricted the appe
eal to that portion of the order of the
learned
Single Judge that d
declines 50% of the back wages.
7. The lea
arned counsel appearing for the resp
pondent
No.5, would refute
e the submissions of the managem
ment in
contending that th
e petitioner was found that the resp
pondent
No.5 was found to
o be the only person who was eligible
e to be
promoted to the p
ost of lecturer in economics in the v
vacancy
that was created by
y the retirement of one Sri. B.S. Honn
ur. The
deliberate act on th
he part of the management in not pro
omoting
the petitioner led to
o series of litigations in which the resp
pondent
has been successf
ful. The order of the learned Single
e Judge
does not warrant
any interference in the submission
of the
learned counsel.
8. We hav
ve given our anxious consideration
to the
submissions made
by the respective learned counsel.
- 10 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
9. The afo
ore-narrated facts, dates, link in the c
chain of
events are all a m
atter of record. They would not requ
ire any
iteration. The order
r in appeal which forms the foundation
n of the
entire generation o
f litigation is reads as follows:
“The ap
135 of the Kar
ppellant has filed this appeal under Sect
tion
rnataka Education Act, 1983.
The app
the High Sch
management o
post-graduate
and also Post
1999-2000 wh
st nd
1 and 2 res
fell vacant due
28.2.2002. Th
requisite qualif
above vacant
considered fro
Economics sub
pellant is working as an Assistant Teache
er in
ool section of the institution run by
st nd
of 1 and 2 respondents. He has secu
the
ured
degree in M.A., in Political Science in 1
t-graduate degree in M.A. in Economics
hile in service. In the PU College run by
993
s in
the
mics
spondent management, a post of Econom
e to retirement of one Sri. B.S. Hunnur
he appellant claims that he possesses
r on
the
heir
fication and eligibility for promotion to t
post and that his promotion should
om the date of occurrence of vacancy
bject.
be
y of
st
were served to the appellant and 1 and
o produce relevant documents and sub
nd
2
bmit
Notices
respondents to
parawise repli
this authority.
respondents a
18.3.2005 and
objections, arg
authority
es and also to file their arguments bef
st
Accordingly, the appellant and 1 and
ppeared before this authority on 4.3.20
d 1.4.2005 and submitted their statemen
fore
nd
2
005,
t of
this
guments and written arguments before
st nd
rned counsel for the 1 and 2 responde
The lear
argued that t
Degree in M.A
that he has n
respondent to
contended tha
section and h
ents
uate
the appellant has obtained Post-gradu
. in Economics as an external candidate
not obtained prior permission from the
and
rd
3
ther
hool
here
o appear for the said exam. Furt
at there are many vacancies in High sch
is services were very much required th
- 11 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
and that the s
with his teach
not suitable t
level. Further,
School will suf
as lecturer. Fu
instructions of
the backlog
30.10.2002, f
educational in
management i
applications fo
English subject
students at High School level did not c
ope
e is
rsity
High
ing in high school itself and therefore h
to be permitted to touch at Pre-univer
, due to his promotion the work at H
ffer and that he is not suitable for promot
urther the counsel argued that as per circ
tion
ular
n all
f the Director of Pre-University Education
vacancies will have to be filled bef
failing which the salary grants of all
nstitutions will be stopped. Therefore,
fore
the
the
ling
and
issued notification in the newspapers cal
or the post of lecturer in Economics
ts by SC/ST candidates.
The lear
the post of
retirement of o
the manageme
promotion from
under rules. I
the newspape
Economics to
recruitment. T
in more than 1
the High Scho
management
nd
from the 2 r
graduation deg
before the occ
vacancy occur
had submitted
consider his
Economics; bu
on flimsy g
management
Composite PU
still four more
promotion from
contended tha
rd
3 responden
rned counsel for the appellant argued t
that
Economics lecturer fell vacant due
one Sri. B.S. Hunnur on 28.2.2002 and t
ent so for has not filled any of the posts
m the cadre of assistant teachers as requ
to
that
s on
ired
t in
nstead, they have issued advertisement
er calling applications for the post
o all the vacant posts through di
he counsel argued that the appellant has
10 years of service as an assistant teache
of
rect
put
er in
st nd
ool section of the 1 and 2 respond
dent
and that he has obtained prior permiss
respondent management to pursue M.A.p
sion
post
gree in Economics. Further, he argued t
currence of the vacancy and soonafter
that
the
lant
t to
red in the Composite College, the appel
d representations to the management
promotion to the post of lecturer
ut the management has denied his promot
in
tion
grounds. He has contended that
has filled all the post of lecturers in
the
the
are
on
ther
College by direct recruitment and there
e posts which have to be compensated
m the cadre of Assistant teachers. He furt
at the circular dated 3.8.2002 issued by
the
klog
nt Directorate regarding filling up of back
- 12 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
vacancies is a
not a specific
nd
2 responden
respondent co
are not filled
spite of the
Director
Pre-University
University Edu
Economics su
assistant teac
rules, the ma
therefore, the
from 28.2.200
lecturer fell va
common circular to all the colleges and
st
instruction to the college run by the 1
it is
and
nts and that the salary grant to
the
cies
llege will be stopped, the backlog vacanc
is not tenable. The counsel argued tha
t in
puty
directions issued by the District Dep
of
Pre-
Education and also the Director of P
ucation to fill up the vacancy for the pos
ubject on promotion from the cadre
t of
of
per
and
ered
mics
hers to filled the promotion quota as
anagement as not obeyed the orders
appellant's promotion should be conside
02. on which date the post of Econom
cant
I have
for the appella
verified the do
lecturer in Eco
lecturer. Sri.
Composite P
management
Cadre and Re
lecturers in the
and promotion
followed this p
lecturers by pr
of Assistant te
10 years of
qualification fo
Economics. T
permission to
course and tha
is not necessa
together happe
spite of the in
of Pre-Univers
University Edu
vacant post o
heard the contentions of both the couns
st nd
ant and 1 and 2 respondents and a
ocuments produced before me. The post
onomics fell vacant due to retirement o
sels
also
t of
of a
B.S.Hunnur on 28.2.2002. Since it is
Pre-university University College,
has to follow the guidelines prescribed
ecruitment Rules i.e., to fill the posts
s a
the
d in
s of
ment
e ratio of 50:50 by way of direct recruitm
n respectively. The management has
prescription of filling 50% of vacant posts
not
s of
adre
romoting suitable candidates from the ca
eachers. The appellant has put in more t
han
service and he possesses the requi
or promotion to the post of lecturers
nd
The 2 respondent has also accor
the appellant to pursue his post graduat
rd
at separate permission of the 3 respond
nd rd
ary since 2 respondent and 3 respond
site
s in
rded
tion
dent
dent
en to be the appointing authority. Further
nstructions from the District Deputy Direc
r, in
ctor
Pre-
sity Education and also the Director of P
ucation, the management has not filled
the
rom
f lecturer in Economics by promotion fr
- 13 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
the cadre of A
quota. Since t
from the assis
promote him
date of occu
respondent ma
show that the
lecturer and t
School section
respondents t
name in the
university Edu
private educat
assistant teach
view of the abo
Assistant teacher to fulfill 50% promotio
onal
date
the appellant is the only eligible candid
stant teacher cadre, the management has
s to
to the lecturer's post with effect from
st
rrence of the vacancy The 1 and
anagement did not produce any evidence
e appellant is not fit to hold the post
the
nd
2
e to
t of
High
that his work is not satisfactory at H
st
. Further, the memo produced by 1 and
that the appellant has not registered
nd
2
his
Pre-
of a
list of lecturers in the Directorate of P
ucation is not applicable in the case o
tional institution, as it is required only
hers working in Government High Schools
for
s. In
ove, I proceed to order as follows:
ORDER
The cla
respondents 1
promote him
immediate effe
aim of the appellant is accepted
1 and 2 are directed to take action
and
to
with
to the post of lecturer in Economics w
ect.
(Dictate
and order pron
d to the Stenographer, transcripted & ed
nounced on this day the 25.7.2005)
ited
Sd/-
Director
Pre-University Educatio
on.”
It is based upon t
his order, the further orders are pas
ssed by
the authorities, wh
hich are all captured by the learned
Single
Judge in the orde
r impugned. The learned Single Jud
dge has
passed the followin
g order:
- 14 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
th
“The 5
h
respondent was appointed as Assista
he Girls School run by the petitioner
nt
Teacher in th
Management o
college run by
retirement of
required to f
Recruitment R
ratio of 50:5
promotion res
this prescripti
lecturer by pro
of Assistant
notification inv
post of lecture
ground that th
against which,
before this Co
relegated the
Authority unde
Act, 1983 (for
–
he
on 23.11.1990. The post of lecturer in th
y the petitioner fell vacant in 2002 due
to
as
nd
he
nd
ng
Sri B S Hunnur as the petitioner wa
follow the guidelines in the Cadre an
Rules i.e. to fill the post of lecturer in th
50 by way of direct recruitment an
pectively. The petitioner without followin
on of filling 50% of vacant of post
omoting suitable candidate from the cad
of
re
Teacher, the Management issued
viting applications for appointment to th
er in Economics among other posts on th
a
he
he
ry,
e said post is reserved for SC/ST categor
, the 5th respondent filed a writ petitio
ourt. This Court by order dated 2.11.201
on
10
petitioner to approach the compete
er the provisions of Karnataka Educatio
nt
on
short `Act’).
2. Th
order directin
respondent to
a single post, a
before the 4th
dated 17.1.20
petitioner con
respondent dir
respondent to
this writ petitio
he 2nd respondent on 25.7.2005 passed a
ng the petitioner to promote the 5
an
th
the post of lecturer in Economics, which
against which the petitioner filed an appe
th
h respondent. The 4 respondent by ord
is
eal
er
he
nd
012 dismissed the appeal filed by th
nfirming the order passed by the 2n
recting the petitioner to promote the 5
th
ce,
the post of lecturer in Economics. Henc
on.
3. Le
make the follow
earned counsel for the petitioner wou
uld
wing submissions:
a) Th
on
A
is
or
he order passed by the 2nd respondent
ne without authority of law since th
is
he
on
an
he
uthority specified under the notificatio
ssued by the government so as to pass a
rder under Section 131 of the Act is th
- 15 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
C
H
re
ommissioner for Public Instruction
ence, the order passed by the 2n
espondent is one without authority of law;
ns.
nd
;
b) Th
w
th
of
ill
he officer who passed the impugned ord
was transferred on 17.1.2012 and as suc
er
ch,
aid
he impugned order passed by the sa
fficer is actuated by malafides an
legalities;
nd
c) Th
re
th
pr
si
he post of lecturer in Economics wa
eserved for SC/ST category and as suc
he 5th respondent is not entitled f
as
ch
for
romotion to the said post since it is not
ingle post.
a
4. O
appearing for
following subm
n the other hand, learned couns
r the 5th respondent would make th
missions:
sel
he
a) Th
po
el
sa
he post of lecturer in Economics is a sing
ost and as such the 5th respondent
ligible and qualified for promotion to th
aid post.
gle
is
he
b) Th
N
S
U
Pr
C
co
pe
he Authority specified under th
otification for passing an order und
ection 131 of the Act is the Director of Pr
niversity Education, Department
reUniversity Education and not th
ommissioner for Public Instructions a
ontended by the learned counsel for th
he
er
e-
of
he
as
he
etitioner;
c) Ev
4t
it
pr
th
to
ven assuming that the order passed by th
th respondent was after his transfer, th
self would not vitiate the order since n
rejudice is caused to the petitioner sinc
he 5th respondent is entitled for promotio
o the post of lecturer in Economics as p
he
at
no
ce
on
er
- 16 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
th
2
he order dated 25.7.2005 passed by th
he
nd respondent.
5. In
decisions of th
Jagmohan & O
case of Olga
Corporation an
n support, he placed reliance on th
he
e Apex Court in the case of S. L. Kapoor v
Ors. reported in AIR 1981 SC 136 and in th
vs
he
pal
Tellis and others –vs- Bombay Municip
nd others reported in AIR 1986 SC 180.
6. I
the learned co
have considered the submissions made b
unsel for the parties.
by
7. Th
writ petition ar
he points that arise for consideration in th
re:
his
i) W
re
Whether the order passed by the 4
th
espondent is without authority of law?
ii) W
pe
th
w
re
an
da
Whether any prejudice is caused to th
he
by
ed
etitioner by the impugned order passed b
he 4th respondent having being vitiate
with regard to the fact that the 4
th
12
me
espondent was transferred on 17.1.201
nd he passed an order on the very sam
ay?
Regarding poin
nt No.(i):
8. Th
dated 14.9.20
administrative
issued by any
Pre-University
employees suc
fixation, sanct
promotion, se
matters relati
Director of Pr
power to pass
respondent ha
his case for
Economics. H
direction issue
post of lectur
he government has issued a notificatio
on
ny
004, wherein it is specified that an
or quasi judicial decision taken or ord
y private educational institution impartin
er
ng
education, regarding service matters of i
ch as appointment, period of probation, pa
its
ay
tion of leave and increments, suspensio
eniority, transfer, pension and all oth
n,
er
he
he
ing to their conditions of service, th
e-University Education is vested with th
s an order. In the present case, the 5
as submitted to the petitioner to consid
th
er
promotion to the post of lecturer
owever, the petitioner in spite of th
ed by the competent Authority to fill up th
in
he
he
he
rer in Economics by promotion from th
- 17 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
cadre of Assis
notification inv
to fillup the
Recruitment a
to be revised
respondent wa
power of revis
regard to pro
University Coll
Assistant Teac
submission of
the order pass
131 of the Act
stant Teacher, the Management issued
viting applications from suitable candidate
a
es
ect
post of lecturer in Economics by dire
nd this action of the petitioner was soug
ht
nd
he
under Section 131 of the Act. The 2n
as the competent Authority to exercise th
sion since the dispute involved was wi
omotion to the post of lecturer in Pr
th
e-
ege run by the petitioner from the cadre
cher working in High School. Hence, th
of
he
the learned counsel for the petitioner th
sed by the 4th respondent under Sectio
at
on
.
is with authority of law is not acceptable.
Regarding poin
nt No.(ii):
9. Pe
by the 4th r
passed on 17.
on 17.1.2012.
that the office
the order. Eve
officer cannot
if the matter is
undisputed tha
single post an
for promotion
cannot be app
cases of this C
particularly in
the case of R
reported in 20
been deprived
to since 2005,
to respondent
injustice who i
erusal of the order dated 17.1.2012 passe
respondent discloses that the order wa
ed
as
ed
1.2012 by the officer, who was transferre
However, no material is placed o establis
r was aware of his transfer before passin
en otherwise the order passed by the sa
sh
ng
aid
be interfered, since it will be futile exercis
s remitted to the 4th respondent, since it
se
is
at the post of lecturer in Economics is
nd 5th respondent is qualified and eligib
a
ble
to the said post and as such reservatio
lied to the single post as held in catena
Court as well as the Apex Court and mo
on
of
re
view of the decision of the Apex Court
R R Inamdar –vs- The State and othe
in
ers
019 SCC Online 1603. The petitioner ha
as
ed
ed
me
of promotion to which he is legally entitle
and at this stage if the matter is remitte
No.4, the petitioner will be put to extrem
s on the verge of retirement.
10. Th
promotion to
fault of his an
he 5th respondent is deprived of h
his
the post of lecturer in Economics for n
nd as such, he is entitled for promotion
no
to
- 18 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
the post of E
which the 2nd
petitioner – Ma
to the post of
lecturer in Eco
liable to pay th
No.5 having
promotion in 2
respondent is
salary. Accordi
Economics w.e.f. 25.7.2005, the date o
on
he
respondent passed the order directing th
anagement to promote the 5th responde
nt
lecturer in Economics. Though the post
onomics is an aided post, the petitioner
of
is
nt
his
he arrears of back salary to the responde
deprived the 5th respondent of h
2005, it is appropriate to hold that the 5
th
ck
entitled to 50% of the arrears of bac
ingly, I pass the following:
ORDER
i) W
Writ petition is allowed;
ii) T
p
le
o
p
c
b
m
f
10. The Ma
The petitioner – Management is directed
promote the 5th respondent to the post
to
of
he
ecturer in Economics in the light of th
order dated 25.7.2005 at Annexure-
passed by the 2nd respondent wi
continuity of service and all other moneta
benefits w.e.f. 25.7.2005. However, it
made clear that 5th respondent is entitle
for 50% of arrears of back salary.”
-A
th
ry
is
ed
anagement has preferred this intr
ra-court
appeal. It becomes
s apposite to refer the judgment of th
he Apex
Court in BIHAR
R INDUSTRIAL AREA DEVELOP
PMENT
1
COPE SALES (P) LTD. , wherein it ob
bserves
AUTHORITY v. SC
as follows:
1
2026 SCC OnLine SC 1
112
- 19 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
“…. …. ….
13. We
extent of jur
Bench of a
jurisdiction i
Patent or by
pertinent to
Division Ben
under Article
the exercise
warranted on
challenge is d
perversity. Su
merely beca
same set of
adopted by
reasonable o
appellate Be
view, merely
to be better t
so long as th
plausible on
distance.
must also bear in mind the nature a
risdiction that an intra-court appella
and
ate
ate
ers
t is
and
high court exercise. Such appella
is conferred either under the Lette
the relevant statutory provisions. It
note that both - Single Bench a
nch - exercise the same jurisdicti
ion
ew,
e 226 of the Constitution. In our vie
of intra-court appellate jurisdiction
nly where the judgment or order und
is
der
demonstrably erroneous or suffers fro
om
ked
uch jurisdiction ought not to be invok
use another view is possible on t
f facts, particularly where the vie
the
ew
and
the Single Judge is a plausible a
one. In other words, an intra-cou
ench ought not to substitute its ow
urt
wn
ew
ch;
s a
because such Bench considers its vie
than the one taken by the Single Benc
he view taken by the Single Bench is
ne, interference should stay at
a
14. We
precedents,
reproduced be
find it profitable to refer to cert
relevant paragraphs wherefrom
low:
tain
are
14.1 In
15
Temple , it wa
Baddula Lakshmaiah v. Sri Anjaneya Swa
as held:
ami
2.
appellant
Patent B
upset a
Single Ju
documen
arrived
aforemen
attractive
orders of
High Cou
internal w
into diffe
one. A le
the Lett
Mr Ram Kumar, learned counsel for the
ts, inter alia contends that the Letters
Bench of the High Court could not have
finding of fact recorded by a learned
udge on fresh reconciliation of the two
nts, arriving at different results than those
at earlier by the two courts
ntioned. Though the argument sounds
e, it does not bear scrutiny. Against the
f the trial court, first appeal lay before the
urt, both on facts as well as law. It is the
working of the High Court which splits it
erent ‘Benches’ and yet the court remains
etters patent appeal, as permitted under
ers Patent, is normally an intra-court
- 20 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
appeal w
sitting as
orders in
vested i
appeal
court. In
Court e
Error. S
under th
contrast
procedu
construct
documen
import, a
within th
decide. T
regard.
whereunder the Letters Patent Bench,
s a Court of Correction, corrects its own
n exercise of the same jurisdiction as was
n the Single Bench. Such is not an
against an order of a subordinate
n such appellate jurisdiction the High
exercises the powers of a Court of
So understood, the appellate power
he Letters Patent is quite distinct, in
t to what is ordinarily understood in
ural language. That apart the
tion of the aforementioned two
nts involved, in the very nature of their
a mixed question of law and fact, well
he powers of the Letters Patent Bench to
The Bench was not powerless in that
(emphasis ours)
14.2 Th
Ltd. v. Workme
is Court in Narendra & Co.
16
en noted that:
(P)
5.
appeal,
Appellat
the find
shall no
another
there s
disturba
Single J
fairer ap
… Be that as it may, in an intra-court
on a finding of fact, unless the
te Bench reaches a conclusion that
ing of the Single Bench is perverse, it
ot disturb the same. Merely because
view or a better view is possible,
should be no interference with or
ance of the order passed by the
Judge, unless both sides agree for a
pproach on relief.
14.3 On
exercise of in
in Roma So
17
Commission
words:
n whether a remand could be ordered
ntra-court appellate jurisdiction, this Co
in
ourt
onkar v. M.P. State Public Serv
expressed reservations in the follow
vice
wing
3.
whether
appeal c
the mat
exercise
under
India. T
the Div
jurisdict
We have very serious reservations
r the Division Bench in an intra-court
could have remitted a writ petition in
tter of moulding the relief. It is the
e of jurisdiction of the High Court
Article 226 of the Constitution of
The learned Single Judge as well as
vision Bench exercised the same
tion. Only to avoid inconvenience to
- 21 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
the litiga
Division
power o
mean th
the Divi
the Divi
intra-co
consider
view ta
Hence, i
to cons
deciding
of the
remittin
Judge.
ants, another tier of screening by the
Bench is provided in terms of the
of the High Court but that does not
hat the Single Judge is subordinate to
sion Bench. Being a writ proceeding,
ision Bench was called upon, in the
urt appeal, primarily and mostly to
r the correctness or otherwise of the
aken by the learned Single Judge.
in our view, the Division Bench needs
sider the appeal(s) on merits by
g on the correctness of the judgment
learned Single Judge, instead of
ng the matter to the learned Single
18
AAI v. Pradip Kumar Banerjee , wh
ts decision in Narendra (supra), this Co
ollows:
14.4 In
referring to it
observed as fo
hile
ourt
41.
intra-co
must res
the judg
Judge is
the lea
suffers
Howeve
case, fa
rather,
reapprec
judgmen
The position is, thus, settled that in an
urt writ appeal, the appellate court
strain itself and the interference into
gment passed by the learned Single
s permissible only if the judgment of
rned Single Judge is perverse or
from an error apparent in law.
r, the Division Bench, in the present
ailed to record any such finding and
proceeded to delve into extensive
ciation of evidence to overturn the
nt of the learned Single Judge.
(emphasis ou
urs)
15. Bea
was involved c
question was
an educational
dismissal of th
the Single Jud
that BIADA la
though prima
same is debata
ring in mind the larger public interest t
coupled with the fact that the plot of land
hat
d in
sought to be reserved for establishment
l institution, we are of the firm opinion t
he writ petition was an available option
dge. The view taken by the Division Ben
t of
hat
for
nch
cked the authority to cancel the allotm
facie may appear to be appealing, yet, t
able.
ent
the
15.1 Ap
of intra-court
aforesaid prece
pplying the principles governing the exerc
cise
appellate jurisdiction, as laid down in t
edents, to the facts of the present case,
the
we
- 22 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
observe that
deference to
of first insta
was exercis
Single Judge
on a ground
Division Ben
the writ pet
intra-court a
order of the
incorrect or pe
judicial discipline demanded d
the exercise of discretion by the cou
nce, particularly when such discreti
sed on relevant considerations. T
e having refused exercise of discreti
due
urt
ion
The
ion
the
d which, in our opinion, is valid, t
ch ought to have been loath to allo
tition, and that too in exercise of
appellate jurisdiction. The judgment a
ow
its
and
Single Judge was far from being who
erverse.”
olly
(Emphasis su
upplied)
In the afore-quoted
d judgment the Apex Court observes
that in
an intra-Court appe
eal, unless the order suffers from perv
versity,
the writ appeal wo
uld not become entertainable as a ma
atter of
course. In that ligh
ht, if the order of the Appellate Auth
hority /
Government in App
peal No.61 of 2005 is noticed along w
with the
order of the learne
ed Single Judge, neither order disclos
ses any
perversity. The le
earned Single Judge has considered
d every
submission made
by the appellant – Management bef
fore us.
Therefore, the app
peal preferred by the Management
stands
dismissed.
11. Insofar
as the appeal filed by the employee
e where
the backwages is
restricted to 50% is concerned,
on the
principle of no wo
rk, no pay, it is an admitted fact th
hat the
- 23 -
952-DB
of 2023
of 2022
HC-KAR
NC: 2026:KHC-D:15
WA No. 100127 o
C/W WA No. 100252 o
CNR: KAHC0201852520
022
petitioner has not b
been worked as lecturer in economics
s till the
order passed by the
e learned Single Judge. The order of g
granting
50% back wages
cannot be altered or the responden
nt No.5
cannot be given a p
premium of full back wages.
12. The ord
der of the learned Single Judge insofar
r as the
grant of 50% back
k wages does not warrant any interf
erence.
Thus, the appeal
filed by the employee teacher also
stands
dismissed.
13. Both th
e Writ Appeals thus stand dismissed .
.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Sd/-
(HEMA KULKARNI)
JUDGE
RSH / CT: ASC
List No.: 1 Sl No.: 22
2