Karnataka High Court Sri Shivashankar M P vs The State Of Karnataka on 23 April, 2014Author: A.N.Venugopala Gowda

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 23RD DAY OF APRIL 2014

BEFORE

THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

WRIT PETITION NOS.7743 & 7744 -7748 OF 2014(S-RES)

BETWEEN

1.SRI SHIVASHANKAR M P

S/O PUTTAMADAIAH M,

AGED ABOUT 41 YEARS,

OCC:ASST TEACHER, WORKING AT

SRI YOGA NARASIMHA SWAMY

HIGH SCHOOL, SALIGRAMA,

K R NAGAR TALUK, MYSORE DISTRICT.

2.SRI SURESHA V J,

D/O JAYARAME GOWDA,

AGED ABOUT 48 YEARS,

OCC:HEAD MASTER, WORKING AT

SRI YOGA NARASIMHA SWAMY

HIGH SCHOOL, SALIGRAMA,

K R NAGAR TALUK, MYSORE DISTRICT.

3.SMT RAJESHWARI H N,

D/O NANJE GOWDA,

AGED ABOUT 47 YEARS,

OCC:ASST TEACHER, WORKING AT

SRI YOGA NARASIMHA SWAMY

HIGH SCHOOL, SALIGRAMA,

K R NAGAR TALUK, MYSORE DISTRICT.

4.SRI SHANTHARAJU, S/O KARI GOWDA, AGED ABOUT 43 YEARS,

OCC:ASST TEACHER, WORKING AT

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SRI YOGA NARASIMHA SWAMY

HIGH SCHOOL, SALIGRAMA,

K R NAGAR TALUK, MYSORE DISTRICT.

5.SRI ASHOKA H J, S/O JAVARE GOWDA H K AGED ABOUT 42 YEARS,

OCC:ASST TEACHER, WORKING AT

SRI YOGA NARASIMHA SWAMY

HIGH SCHOOL, SALIGRAMA

K R NAGAR TALUK, MYSORE DISTRICT.

6.SMT RENUKA REDDY, D/O PUTTASOMA REDDY AGED ABOUT 50 YEARS

OCC:P E TEACHER, WORKING AT

SRI YOGA NARASIMHA SWAMY HIGH SCHOOL, SALIGRAMA, K R NAGAR TALUK

MYSORE DISTRICT.

… PETITIONERS

(BY SHRI. CHANDRASHEKAR G M, ADVOCATE)

AND

1.THE STATE OF KARNATAKA

BY ITS SECRETARY

DEPARTMENT OF PRIMARY EDUCATION MULTISTORIED BUILDING

VIDHANA VEEDHI

BANGALORE-560001

2.THE COMMISSIONER

DEPARTMENT OF PRIMARY EDUCATION NRUPATHUNGA ROAD

BANGALORE-560001

3.THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS, ADMINITRATION

DEPARTMENT OF PUBLIC INSTRUCTIONS 3

MYSORE DISTRICT, MYSORE

4.THE BLOCK EDUCATION OFFICER,

K R NAGAR TALUK,

MYSORE.

.. RESPONDENTS

(BY SMT. M.S.PRATHIMA , HCGP)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS AUTHORITIES TO TAKE INTO ACCOUNT THE SERVICE BENEFITS OF THE AUTHORITIES TO TAKE INTO ACCOUNT THE SERVICE BENEFITS OF THE PETITIONERS FROM THE DATE OF THEIR INITIAL ENTRY i.e., FROM THE DATE OF APPOINTMENT INSTEAD OF FROM THE DATE OF THEIR POSTS WERE ADMITTED TO GRANT-IN-AID, ETC.

THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Petitioners are teaching and non-teaching staff of

private aided educational institution. According to the

petitioners, their appointments have been approved, and

while approving the appointments, a condition having been

imposed that the past service rendered from the date of

appointment till the appointee was admitted for

salary grant will be counted only for the purpose

of leave and pension and thereby denied 4

the notional annual increments, these writ petitions

were filed on 12.02.2014, to direct the respondents to take

into account the service of the petitioners from the date of

their initial entry i.e., from the date of appointment,

instead of from the date of their posts were admitted to

grant-in-aid i.e., for the purpose of computing the pay

scale, seniority and other consequential service benefits.

2. Sri G.M. Chandrashekar, learned advocate for

the petitioners contended that the writ petitions filed by

some of the teachers working in other institutions, seeking

to reckon their services from the date of their initial

appointments up to the date of approval for the purpose of

fixation of pay scale, seniority and all other benefits having

been allowed and the writ appeals and the Special Leave

Petitions filed by the Government having been dismissed,

the respondents have an obligation to extend the same

benefit to the petitioners. He submitted that, since the

respondents have not extended the said benefits to the

petitioners despite, the submission of representation by 5

the Association, there is violation of Article 14 of the

Constitution of India.

3. Perused the writ record.

4. The petitioners have not made any demand

with the respondents seeking to perform the legal duty.

Annexure-C is a legal notice and not a representation.

Submission of Sri G.M. Chadrashekar to treat Annexure-C

as a representation made by the petitioners, cannot be

accepted. The demand must be made in writing by the

petitioners with all service particulars, so that the authority

can secure the relevant records and take decision in the

matter. Since the petitioners have not made any distinct

demand with the respondents by furnishing the full service

particulars along with the supportive documents, with

regard to the claims made in these writ petitions, petitions

filed for issue of writ of mandamus cannot be entertained.

5. In A. Prabhakara Reddy vs. The State of

Karnataka and others, 1980 (1) KLJ 456, with regard to 6

issuance of writ of mandamus to the authorities, it has

been held as follows:

“9. As a rule this Court exercising its jurisdiction under Article 226 of the Constitution will issue a Writ of mandamus to the Authorities like the 1st and 2nd respondents if they failed to discharge their duties arising out of legal obligations, in spite of a written demand.”

6. In Sri D.L. Chowda Reddy and others vs. The

State of Karnataka, by its Secretary, Department of

Primary Education and others, ILR 2013 Kar 5085,

considering the object of Writ of Mandamus and criteria for

issue of Writ of Mandamus, in a case relating to the

identical claim, it was held as follows:

“2. The object of issue of writ of mandamus is to compel performance of a legal duty. A mandamus will be issued to a person aggrieved who approaches the Court, if he makes out (i) existence of a legal right in him and a corresponding obligation on the respondent to perform a legal duty and (ii) refusal, either express or implied, by the respondent to perform such duty, in spite of a demand. Where a petition seeking mandamus is not preceded by demand for performance of a legal duty, the Court cannot entertain such a petition.”

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7. In Saraswati Industrial Syndicate Ltd. Etc., vs.

Union of India, AIR 1975 SC 460, Apex Court has held as

follows:

“24…… As a general rule writ of mandamus will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that, that demand was met by a refusal.”

8. In Rajasthan State Industrial Development and

Investment Corporation vs. Subhash Sindhi Cooperative

Housing Society, Jaipur and Others, (2013) 5 SCC 427,

Apex Court has held that while granting a writ, the Court

must make every effort to ensure from the averments of

the writ petition, there exists proper pleadings. With

regard to the writ of mandamus, it has been held as

follows:

“24……In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to 8

an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right…….”

The ratio of the above decision was reiterated by the

Supreme Court in Rajasthan State Industrial Development

and Investment Corporation and another vs. Diamond &

Gem Development Corporation Limited and another,

(2013) 5 SCC 470.

9. Sri G.V.Venkatesh, conceded that prior to filing

of these writ petitions, the petitioners did not submit

individual written representations to the respondents

seeking to extend the service benefits on par with the

relief, which the teachers working in other institutions have

got by virtue of the orders passed in other cases.

10. The petitioners having not made any demand

in writing with competent authority having the requisite 9

authority to perform the demand and there being no

opportunity for the competent authority to examine the

claims and take decision in the matter, these writ petitions

for issue of writ mandamus to the respondents, in view of

the ratio of law in the decisions, noticed supra, cannot be

entertained.

In the result, writ petitions are rejected. However,

liberty is reserved to the petitioners to approach Office of

the Authority having the requisite authority to perform the

act demanded and for extending benefits. If the

Competent Authority does not act in the matter within a

reasonable period, it is open to the petitioners to seek

relief, if any, in accordance with law.

Sd/-

JUDGE

Msu