ORDER
N.K. Patil, J.
1. In the instant case, the petitioners have sought for a mandamus directing the respondents to order the placement of Father Dr. Ambrose Pinto S.J. as Grade I Principal of St. Joseph College (Arts & Science), Bangalore, and pay the salary under the Grant-in-Aid Scheme with effect, from 1-8-2003.
2. The 1st petitioner-Society is running several Educational Institutions. St. Joseph College (Arts & Science), Bangalore, is one of them and the 2nd petitioner is working as a Principal of St. Joseph College, with effect from 1-8-2003. The 2nd petitioner was appointed as Principal of St. Joseph Evening College with effect from 16-6-94. The approval was granted by the competent authority of the respondents for the said appointment, while he was so working ha was sent on deputation to the Indian Social & Education Institute New Delhi, as Director of Research. The said deputation was made with a prior approval of the respondents as per the communication dated 15-7-1998. While he was so working on deputation, by communication dated 28-11-1998, a provision was made for appointment of Principals in Cadre/Grade I and necessary proposals in this behalf was sought from the 1st petitioner. Accordingly, the 1st petitioner-management has passed the Resolution dated 12-12-1998 and it was unequivocally resolved to appoint the 2nd petitioner in the cadre of Principal Grade-I. On the submission of the proposal along with the said Resolution the Joint Director of Collegiate Education opined that the placement and fixation of the salary of the Principal Dr. Pinto will be done on his return from his deputation and resumption of his duties in the post of Principal which is crystal clear from the communication dated 12-2-2000 vide Annexure-E. The 2nd petitioner returned from deputation and reported for duty on 1-6-2001. The same wag communicated to the 2nd respondent vide Annexure-F. Thereafter, the 2nd respondent was requested to issue necessary orders for placement and fixation of salary of the 2nd petitioner in the cadre of Principal Grade-I, but no action has been taken till this date.
3. The further case of the petitioners is that on 1-8-2003 the transfer of 2nd petitioner as a Principal of the St. Joseph college (Arts & Science) in the vacancy created by the transfer of Father Eugene Lobo as Principal of Sl. Aloyius College, Mangalore, by its communication dated 28-4-2004, was endorsed with the request for placement and salary was rejected for the reasons stated therein. Even the request for releasing the salary was turned down by communication dated 7-10-2004. Immediately, after receipt of the said communication, a detailed representation was submitted by the 1st petitioner twice vide Annexures-L & M. However, till this date the placement of the 2nd petitioner as a Principal and payment of salary has not been done. Therefore, the petitioners are constrained to approach this Court by way of filing the present Writ Petition seeking appropriate relief as stated supra.
4. The principal submission canvassed by the learned senior counsel appearing for the petitioners is that the respondents have intentionally and deliberately not considered the representations submitted by the petitioners vide Annexures-K, L & M, for appointment of the 2nd petitioner as Principal Grade-l in the day College and it is permissible as per the relevant Notification issued by the Government dated 3-10-81. The petitioner-Institution being a minority Institution they are entitled to transfer any employee from one aided Institution to another aided Institution in the same cadre without prior approval of the 2nd respondent and this point- is also specifically pointed out in the representation and to that effect Endorsement has been issued by the Joint Director of Collegiate Education, vide Annexure-E dated 12-2-2000, wherein it is specifically clarified that the petitioner’s salary has been granted as per the UGC scale. Therefore, he submitted that the transfer of the 2nd petitioner as Principal St. Joseph (Arts &. science) college is perfectly legal and valid and the respondents are under duty to pay the salary of the 2nd petitioner in accordance with Grant-in-Aid Code. Failure to do so, by the competent authority is arbitrary, capricious and whimsical and has resulted in an invidious discrimination violating the rights of the petitioners guaranteed under Article 14 of the Constitution of India.
5. Further, the learned Counsel for the petitioners was quick to point out and submit that the 2nd petitioner was originally appointed as Principal Grade-I, but he has not passed the Refreshment Course. Hence, the petitioners cannot be found fault with and the respondents cannot deny the said salary without any authority. To substantiate his submission he was quick to point out and refer to Annexure-K dated 20th December, 2004, wherein the 1st petitioner management in unequivocal terms has clarified that this does not require creation of any new post or filling in posts that have ceased to exist, and there is no additional financial burden on the Government. The same has been repeated by its communication dated 20th January, 2005, vide Annexure-L. Therefore, he submitted that the prayer sought for by the petitioners may be granted and appropriate directions may be issued to the respondents to pay the salary of the 2nd petitioner with effect from 1-8-2003, with interest.
6. Per contra, the learned Additional Government Advocate appearing for the respondents, inter alia contended and submitted that, the request of the 2nd petitioner cannot be considered on the ground that the 2nd petitioner has not completed the Refresher Course as specifically pointed out vide Annexure-R9, condition No. 5.
Secondly, she submitted that the Resolution passed by the 1st petitioner Institution appointing the 2nd petitioner as principal Grade-I Evening College has not been approved and the same has been communicated on 24-4-2004 and thirdly she submitted that the salary could not be released on the ground that the 2nd petitioner is working for four hours per day instead of 16 hours. She also submitted that there is already existing Political Science Lecturer and the request of the 2nd petitioner cannot be considered. Therefore, she submitted that having regard to this background, the respondents are not in a position to release the salary of the 2nd petitioner.
7. After having heard the learned Counsel for the petitioners and the learned Additional Government Advocate appearing for the respondents and after careful evaluation of the entire material available on record and after considering the rival submissions made by the learned Counsel appearing for both the parties, the only question that arises for consideration is whether the respondents are justified in not releasing the salary of the 2nd petitioner with effect from 1-8-2003?
8. The undisputed facts of the case are that the 2nd petitioner has been appointed as Principal of the St. Joseph Evening college earlier. Thereafter, ha has been transferred as a Principal of the Day College by the management in the Governing Council Meeting held on 1st December, 1998 wherein the 1st petitioner management has resolved that the 2nd petitioner is appointed in the cadre of Grade-I Principal of the Day College. The said decision taken by the 1st petitioner management has been communicated to the competent authority of the respondent. After the receipt of the said communication, the Joint Director of collegiate Education has issued the communication vide Annexure-E dated 12-2-2000 wherein it is specifically referred that immediately after 2nd petitioner returns from deputation the 2nd petitioner’s salary shall be fixed as per UGC Guidelines.
9. It is significant to note that as per the Government Order dated 3rd October, 1981, bearing No. ED 146 UPC 79, Bangalore the Department of collegiate Education, the rules regarding appointments, promotions, transfers, deputations, transfer etc, in aided and unaided Composite College were regulated. It is worthwhile to extract the relevant portion which reads thus:
III. Transfer under the same Management:
If Management is running more than one Degree/Composite Aided (i.e. coming under the Salary Grant schema) college in the State wish to transfer their employees from such a college to another such a College in the same cadre, such transfers may be made by the Management.
(a) without the prior approval of the Director: The Director, should however be furnished with a copy of the transfer order, the date of relief from the College and the date of reporting in the new College to which he is transferred and a fresh salary statement enforceable at the new place of duty.
After careful perusal of the Guidelines issued by the Government by its order dated 3rd October, 1981, the 1st petitioner management is entitled to take a decision to transfer its employees within the Colleges run by the Institution and accordingly it has communicated the same when the 2nd petitioner returned from deputation and reported for duty. Thereafter, they have forwarded necessary recommendations bringing it to the notice of the Joint. Director, Department of Collegiate Education, Bangalore vide Annexure-E dated 12-2-2000 and the same has been received by the office of the said Department. Subsequently, another communication has been sent on 14-6-2001 vide Annexure-G forwarding the proposal for granting Grade-I Principal to Fa. Dr. Ambrose Pinto of the said college.
Accordingly, they have communicated the said decision. Therefore, the stand taken by the learned Additional Government Advocate on instructions from the officials who are present in the Court that the proposal forwarded for transferring the 2nd petitioner from Evening collage to Day College is rejected is very unfortunate and astonishing that the persons in the cadre of Directors give instructions to the learned Additional Government Advocate without reference to the Government Order which is in force.
10. When this matter was listed for consideration on 3-1-2007, it was adjourned to 12-1-2007. On 12-1-07, the matter was adjourned at the request of the learned Counsel appearing for the petitioner to 22-1-2007. From 22-1-2007 it was adjourned to 25-1-2007 and finally to 29-1-2007 at the request of learned Additional Government Advocate to enable her to take instructions and make her submissions. First time, the learned Additional Government Advocate submitted that no prior approval has been obtained for transferring the 2nd petitioner from Evening college to Day college run by the 1st petitioner. On the second date of hearing she submitted on instructions that the 2nd petitioner has not completed the Refreshment Course and his request could not be considered granting Grade-I Principal of the College. Thereafter, the matter was taken up for consideration on 25-1-2007. she submitted on instructions that the petitioner was not working 16 hours in the College. There is no consistency in making submissions. AS and when the court poses question, she submitted that as per the order dated 24-4-2004 the proposal forwarded by the 1st petitioner management appointing the 2nd petitioner as Principal Grade-I has not been approved. The said submission made by the learned Additional Government Advocate is contrary to the contents referred to in the communication dated 24-4-2004 wherein it is specifically pointed out that as per the proposal dated 24-3-2004, the responsibility of appointing the Day College principal is on the 1st petitioner Institution. Therefore, the said submission made by the learned Additional Government Advocate on instructions has no substance nor she has taken any stand in the statement of objections to this effect.
11. Further, the learned Additional Government submitted that the 2nd petitioner has not completed the Refresher course. Therefore, the request of the 2nd petitioner cannot not be considered for appointment as Grade-I Principal of the Day college. To substantiate the same, she was quick to point out and took me through Annexure-R9 produced along with the statement of objections Condition No. 5, wherein it is stated that if the Refresher Course is not completed on or before 31-12-2004 he is not eligible to be appointed as Grade-I Principal.
12. After careful perusal of Annexure-R9 as rightly pointed out by the learned Senior Counsel appearing for the petitioners, that as per the Government order dated 22-3-2004, condition No. 2 reads thus:
Keeping this condition of the Government Order dated 22-3-2004, the Joint Director of Collegiate Education has rightly opined that the placement and fixation of the salary of Principal Dr. Pinto would be done on his return from his deputation and resumption of his duties in the post of Principal as per the UGC Guidelines. The relevant portion reads thus:
Therefore, the said ground taken by the respondents on instructions cannot be sustained.
13. Further, the learned Counsel for the petitioners placed reliance on UGC Notification on revision of pay scale for appointment of Teachers in universities & colleges and other measures for the maintenance of standards, 1998. He placed reliance on 7.7.0 wherein it is stated that the whenever the requirement of orientation or refresher courses has remained incomplete, the promotions would not be held up. This fact has been clarified and the request made with reference to all the relevant aspects of the matter including the Government Order they have submitted a detailed representation dated 26-10-2004 the same was received by the office of the Commissioner, Education Department, dated 29-10-2004 wherein the Education officer of the 1st petitioner has specifically pointed out the delay and it is not fault of the petitioners or the management. It would not be justice to deprive the 2nd petitioner of his rightful placement releasing the pending salary. When the request has been made they have given all the nine references in total and specifically pointed out that the management which is running one more institution in the state has been given the privilege as per the Government Order dated 3-10-81 to transfer its employee from one College to another College in the same cadre without prior approval of the Director of Collegiate Education.
14. When this Court specifically asked the learned Additional Government Advocate what stand has been taken in their statement of objections regarding the consolidated detailed representation which is submitted by the 1″ petitioner on 26-10-2004, but they have not whispered a word in their objections when the 1st petitioner has made all the sincere efforts and taken a decision within the parameter of the Grant-in-Aid Code with reference to the relevant Government Order and the same has been submitted in detail. Neither the 1st respondent nor the 2nd respondent have took any decision for approval of Senior Grade-I Principal and releasing the salary under Grant-in-Aid Code. Further it has been clearly pointed out- by the management there is no need for creation of any new post or filling up the new post and there is no additional burden on the Government. Inspite of the same, the 2nd respondent has not looked into the relevant Notification issued toy the Government and the relevant provisions of the Grant-in-Aid Code under the Education Act including the UGC Guidelines.
15. In the light of the facts & circumstances of the case as stated supra, it is proved beyond reasonable doubt that due to lack of application of mind, the respondents have taken a wrong stand in their statement of objections which is contrary to the relevant material available on the file. Therefore, I am of the considered view that the 2nd petitioner has made out valid ground for seeking the relief as stated supra.
16. Having regard to the facts & circumstances of the case, as stated supra and taking into consideration the totality of the case on hand, this Writ Petition is allowed with costs of Rs. 5,000/- with the following directions:
1) The 2nd respondent is directed to pass an order of placement of 2nd petitioner as Grade-I Principal of St. Joseph Collage (Arts & science), Bangalore, and pay the salary as per Grant-in-Aid Code with effect from 1-9-2003 and submit a proposal to the 1st respondent within four weeks from the date of receipt of the order.
2) The 2nd respondent herein is directed to consider the proposal forwarded by the 1st petitioner and pass appropriate orders in accordance with law in the light- of the case made out by the petitioners vide Annexures-K, L & M and also with reference to the consolidated reply/request made on 28-4-2004 and in the light of the observations made in the course of the order and dispose of the same as expeditiously as possible, within four weeks from the date of proposal forwarded through the 2nd respondent and pay the salary of the 2nd petitioner as per Grant-in-Aid Code with effect from 1-8-2003 with interest at the rate of 6% from 1-8-2003 till the data of realisation.
3) The respondents are directed to deposit a sum of Rs. 5,000/- in the High Court Legal Services Authority within four weeks from the data of receipt of the order and file an acknowledgement along with the memo to that effect in the Registry.
4) If the cost is not deposited by the respondents within four weeks from the date of receipt of the order, the Registry is directed to recover the same in accordance with law.