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Judgment
Heard the learned counsel for the petitioner and the learned Additional Government Advocate for respondents No.1 and 2 and perused the
records.
Respondent No.3, though served remained unrepresented.
The petitioner undisputedly appointed as Assistant Teacher in Karnataka High School, Hubli and the appointment was approved by the Deputy
Director of Public Instructions, Dharwad on 19.07.1983. The 3rd respondent i.e., Dakshina Bharat Hindi Pracharsabha has established three high
schools i.e., 1) Gandhi Hindi High School, Dharwad, 2) Shivappa Jigalur High School Hubli and 3) Karnataka Hindi High School, Avenue Road,
Bengaluru.
The petitioner was also given with promotion as Head Master and posted him in the place of Smt.K.Sulochana who retired from service on
31.12.2000 through letter dated 27.12.2000. The petitioner was directed to take charge as Head Master. Accordingly, he took charge as Head
Master and he was discharging his duty as such. The said promotion was also approved by the 2nd respondent-DDPI , vide order dated
26.03.2001.
It is the case of the petitioner that during the year 2004-05, as the students were decreased in the said institution where the petitioner was
working as Head Master i.e., Karnataka Hindi High School, Bangalore, respondent No.2-DDPI vide order dated 09.05.2005 withdrawn the
recognition given to the said school and intimated respondent No.3, the management accordingly vide letter dated 19.03.2005. That no students
shall be admitted to the said school for the next academic year.
In the said order itself, it is made clear that, the staff who were attached to the said school for which the recognition was withdrawn, they should
be transferred to any other aided schools with the permission of the said aided schools. Further it is clarified in the letter dated 19.03.2005 as per
Annexure-E that the staff of the school to which recognition was withdrawn shall be transferred to the other aided institutions with the permission of
the said aided institutions and proposal should be placed before the Government.
Accordingly from 01.04.2004 up to 27.05.2007, the petitioner was not given any post in any aided institution. As per Annexure-Q dated
07.07.2014 the endorsement which was issued to the petitioner stating that, he is not entitled for any salary benefits and other consequential
benefits from 01.04.2004 to 27.05.2007. In the said order it is made clear that on 28.05.2007, the petitioner was allocated in Gandhi Hindi High
School, Kamanakatte, Dharwad wherein from 28.05.2007 the petitioner has been working in pursuance of the earlier orders of the Government.
In view of the said arrangement being taken place on 28.05.2007 only and he was jobless from 01.04.2004 to 27.05.2007, the petitioner made
representation to the Government to pay salary to him during that particular period, because it is not at his fault he was jobless, he could not do the
work, it is the Government and as well as the 3rd respondent who have not allocated him in any other institution for the purpose of discharging his
work. In view of the same he claimed for all the consequential salary benefits from 01.04.2004 to 27.05.2007.
Similar set of facts came before this court in W.P.No.102110/2016 (S-RES) between Sri Rajendra Vs. The Director of Public Instructions and
others, this court vide orders dated 28.07.2017 relying upon a decision of the Apex Court reported in (2014) 14 SCC 375 between the State of
Behar and Kripa Nand Singh, wherein the Apex Court has considered the entitlement of salary during the waiting period wherein in it is discussed
that the period if it is compulsory and it is not at the fault of the party then he is entitle for the salary during the waiting period also. But if it is at the
fault of the employee and it has to be considered as voluntary waiting period then he is not entitled for such remedy.
It is worth to mention here, the said decision of the Apex Court wherein, the Apex Court has held as follows;
Service - Pay for wai ting per iod - Enti tlement therefore - Present appeal f iled against order directing Appel lant/ State to pay salary to
Respondent as he was not able to join on account of defect in order of transfer - Whether Respondent was enti tled for salary of wai ting period
where he could not join duty on account of non-availabi l i ty of vacant post - Held, Respondent had not joined duty as per letter of appointment -
When Respondent''s appointment was not accepted, he should have brought matter to higher authori ties but nothing was done by him -
Respondent did not make any serious attempt before any author ity seeking permission to join duty in any other place - Respondent wai ted for f
ive years for order to join duty in other place which showed his faul t - Hence, Respondent was not enti tled for per iod as such period was not
compulsory wai ting period but voluntary wai ting period - Impugned order set aside - Appeal dismissed.
In view of the said decision, it is submitted by the learned counsel, either the Government or the 3rd respondent management ought to have
taken responsibility to provide a post for working to the petitioner and the delay is not occurred due to any mistake on the part of the petitioner. It
is on the part of the 3rd respondent as well as the Government in not providing any post in any of the aided institutions of the 3rd respondent,
inspite of the petitioner bringing into the same to the notice of the respondents.
In view of the above said facts and circumstances, this court is of the opinion that an opportunity should be given to the respondents to
reconsider the representation of the petitioner in the light of the above said decision of the Apex Court. Hence I pass the following;
ORDER
writ petition is allowed.
The order passed by the 1st respondent in No.C8(1)/ShaShiARiPi/118/201-13 dated 07.07.2014 is hereby quashed.
Consequently the respondents are hereby directed to reconsider the representation of the petitioner seeking his salary benefits from 01.04.2004
to 27.05.2007 in the light of the above said decision rendered by this court in W.P.No.102110/2016 (S-RES) dated 28.07.2017 and also the
decision of the Apex Court reported in (2014) 14 SCC 375 between the State of Behar and Kripa Nand Singh, and thereafter, pass appropriate
orders in accordance with law within three months from the date of receipt of copy of this order.
The petitioner also hereby directed to make a fresh representation along with copies of the orders passed in W.P.No.102110/2016 (S-RES)
and also decision of the Hon''ble Apex Court reported in (2014) 14 SCC 375 so as to enable the respondents to pass appropriate orders in
accordance with law.