1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7TH DAY OF APRIL, 2014 BEFORE THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NOS.54287-54289/2013 (S-RES) BETWEEN: 1. SRI LOKESHAPPA B S/O BASAVALINGAPPA AGED ABOUT 57 YEARS LECTURER IN HISTORY SRI MANNAMMA PU COLLEGE NALLUR, CHANNAGIRI TALUK DAVANAGERE DISTRICT - 577 221. 2. SRI MAHASWAMY K S/O UJJINAPPA AGED ABOUT 51 YEARS LECTURER IN KANNADA SRI JAGALUR PAPANAYAKA PU COLLEGE KHANAHOSANAHALLI, KODLIGI TLAUK BALLARI DISTRICT - 583 218. 3. SRI ANJANA NAIK D S/O HANUMANTHANAIKA L., AGED ABOUT 35 YEARS PEON, SMT. MALATHI PU COLLEGE JAGALUR, JAGALUR TALUK DAVANAGERE DISTRICT - 577 528. PETITIONERS (BY SRI C.S. MADHU, ADV.) AND: 1. THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY-II 2 DEPARTMENT OF EDUCATION, M S BUILDING BANGALORE-560001. 2. THE DIRECTOR/COMMISSIONER THE DEPARTMENT OF PRE UNIVERSITY EDUCATION SAMPIGE ROAD, MALLESHWARAM BANGALORE-560 012. 3. THE DEPUTY DIRECTOR THE DEPARTMENT OF PRE UNIVERSITY EDUCATION DAVANAGERE DISTRICT DAVANAGERE - 577 001. 4. THE SECRETARY SRI MANNAMMA VIDYA SAMSHTE BYCHENAHALLI, GUBBI TALUK TUMKUR DISTRICT - 572 216. 5. THE SECRETARY SRI SATYANARAYANA VIDYA SAMSTHE KAMANABAVI BADAVANE, CHITRADURGA CHITRADURGA DISTRICT - 577 501. 6. THE SECRETARY SRI SEVALAL VIDYA SAMSTHE J C CAMP, JAGALUR DAVANAGERE DISTRICT - 577 528. RESPONDENTS (BY SMT. M.S. PRATHIMA, HCGP FOR R1 TO R3) THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO RECKON AND COUNT THE PAST SERVICE RENDERED BY THE PETITIONERS FROM THE DATE OF THEIR INITIAL APPOINTMENT UP TO THE DATE OF APPROVAL OF THEIR APPOINTMENT WITH AID RESPECTIVELY FOR THE PURPOSE OF FIXATION OF PAY SCALE, SENIORITY, INCREMENTS INCLUDING TBA, PENSIONARY BENEFITS AND OTHER CONSEQUENTIAL SERVICE BENEFITS, ETC. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: 3 ORDER
Petitioners are teaching and non-teaching staffs and employees of private aided educational institutions. 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 29.11.2013, to direct the respondents to reckon and count the past service rendered by the petitioners from the date of their initial appointment up to the date of approval of their appointment with aid respectively for the purpose of fixation of pay scale, seniority, increments, including TBA, pensionary benefits 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, as is evident from Annexures - Q, R and S, the respondents have an obligation to extend the same benefits 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. There is an averment that the petitioners made demand vide [SECTION] with the respondents, to perform the legal duty. Submission cannot be accepted, since [SECTION] are not by the petitioners but by a body. Petitioners ought to have made the demand in writing, so that the authority can secure the relevant records and take decision in the matter. Since the petitioners have not made individual demand with the respondents, by furnishing the full particulars with regard to the claims made in these writ petitions, the writ 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], by its Secretary, [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 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 [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:
"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 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 [PRECEDENT].
9. Sri [ENTITY], conceded that prior to filing of these writ petitions, the petitioners did not individually approach the respondents to extend the service benefits on par with the relief, which the Lecturers working in other Colleges have got by virtue of the order passed, vide Annexures - Q, R and S. The petitioners having not made appropriate demand with competent authority having the requisite authority to perform the demand and there being no opportunity for the competent authority to examine the claim and take a 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 benefit. 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