1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19TH DAY OF MARCH, 2014 BEFORE THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NOS.57804-57805/2013 (S-RES) BETWEEN: 1. JYOTHIBAI D/O M.SHESHAGIRIRAO AGED ABOUT 58 YEARS OCC: ENGLISH LECTURER WORKING AT: SMT. SUNDARAMMA RAJANAHALLI LAXMANA SETTY GIRLS HIGH SCHOOL P.J. EXTN., DAVANAGERE - 2 (SOUTH ZONE) - 577002. 2. M.J.SHIVALEELA D/O M.JAYADEVAIAH AGED ABOUT 49 YEARS OCC: MATCH TEACHER WORKING AT: SMT. SUNDARAMMA RAJANAHALLI LAXMANA SETTY GIRLS HIGH SCHOOL P.J. EXTN., DAVANAGERE - 2 (SOUTH ZONE) - 577002. PETITIONERS (BY SRI P. MANJUNATH. ADV.) AND: 1. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF PRIMARY EDUCATION MULTISTORIED BUILDING, VIDHANA VEEDHI BANGALORE 560 001. 2 2. THE COMMISSIONER DEPARTMENT OF PRIMARY EDUCATION NRUPATHUNGA ROAD BANGALORE - 560 001. 3. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS ADMINISTRATION DEPARTMENT OF PUBLIC INSTRUCTIONS DAVANGERE DISTRICT - 577502. 4. THE BLOCK EDUCATION OFFICER DAVANGERE - 2 SOUTH ZONE DAVANGERE TALUK - 570 002. RESPONDENTS (BY SMT. M.S. PRATHIMA, HCGP) THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS 1 TO 4, DIRECTING THEM 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 GRANT-IN-AID, ETC. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Petitioner No.1 is working as English Lecturer and petitioner No.2 is working as Mathematics Teacher in Smt. [ENTITY], Davangere (South Zone) - 577 002. According to the petitioners, their appointments were approved by respondent No.1. While approving the appointment, 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 the notional annual increments, these writ petitions were filed on 16.12.2013, 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 [ENTITY], learned advocate for the petitioners contended that the writ petitions filed by some of the teachers working in different 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 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 respondent No.1 has not extended the said benefits to the petitioners, there is violation of [SECTION] of the [ACT].
3. Perused the writ record.
4. The petitioners have not made a demand with the respondents seeking to perform the legal duty. Annexure-C is a legal notice and not a representation. Submission of Sri [ENTITY], to treat Annexure-C as a representation made by the petitioners cannot be accepted. The demand must be 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 the demand with the respondents by furnishing the full service particulars, with regard to the claims made in these writ petitions, petitions for issue of writ of mandamus cannot be entertained.
5. In [PRECEDENT], with regard to issuance of writ of mandamus to the authorities, it has been held as follows:
"9. As a rule this Court exercising its jurisdiction under [SECTION] of the [ACT] 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. It is only when such duties are cast on the authorities and they fail to perform them, the right to seek a Writ of Mandamus arises in favour of the citizen."
6. In [PRECEDENT], 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."
7. In [PRECEDENT], 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:
"22 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 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 "
8. Sri [ENTITY], conceded that prior to filing of these writ petitions, the petitioners did not submit any 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.
9. The petitioners having not made demand in writing with competent authority having the requisite authority to perform the demand and there being no opportunity for the competent authority to examine the claims and take decision in the matters, 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.
JUDGE ca